Dian Kiara Sdn. Bhd. v Gch Retail (Malaysia) Sdn. Bhd. (WA-24C(ARB)-50-11/2025)

The Plaintiff ("DK"), applies by way of Originating Summons dated 11.11.2025("OS") to set aside 2 arbitral awards issued under the auspices of the Asian International Arbitration Centre ("AIAC"): the Final Award (Ref: AIAC/D/ADM-1170-2023) dated 20.6.2025 ("Final Award") and the Interpretation of the Final Award dated 13.8.2025 ("Interpretation") (collectively, the "Awards"). The application is made pursuant to Section 37 of the Arbitration Act 2005 ("AA 2005").

The Defendant("GCH"), opposes the application and urges that it be dismissed with costs.

Having considered carefully the cause papers and submissions filed, I am not satisfied that DK has met the high threshold required to set aside the Awards under Section 37 of AA 2005. Accordingly, the OS is dismissed with costs.

DK has lodged an appeal against my decision in respect of the OS. These constitute my full reasons for the decision. B. BACKGROUND FACTS The Contractual Relationship

DK is the registered owner of Lot 1731, Kuching Central Land District, Sarawak. Pursuant to a Letter of Intent dated 12.11.2009, DK agreed to construct a hypermarket building together with a 500-bay car park in accordance with GCH's specifications.

On 6.10.2010, the parties executed 2 agreements. The $ 1^{\mathrm{st}} $ was an Agreement to Build and Let ("BL Agreement") under which DK constructed the hypermarket facility ("Hypermarket Facility"). The $ 2^{\mathrm{nd}} $ was a Lease Agreement ("Lease Agreement") under which GCH agreed to lease the Hypermarket Facility from DK("Lease"). The Lease Agreement was subsequently varied by a Supplemental Agreement dated 8.10.2012.

The material terms of the Lease Agreement, as relevant to these proceedings, include the following:

(a)The Lease term was 15 years, commencing from the handover of vacant possession and the Occupation Permit on 13.10.2011 and running to 12.10.2026.

(b)The first 12 years of the Lease, from 13.10.2011 to 12.10.2023, constituted the "Guaranteed Period". If the termination of the Lease occurs during the Guaranteed Period, the terminating party would be liable to pay to the other party the rental for the unexpired period of the Guaranteed Period.

(c)Section 14.06 of the Lease Agreement provided a non-waiver clause in the following terms: "No relaxation, forbearance, delay or indulgence by the Lessor in exercising any of its right, power or privilege or enforcing any of the terms and conditions of this Agreement ... nor shall acceptance of rental by the Lessor be deemed to operate as a waiver by the Lessor of any right of action against the Lessee in respect of any breach of any of the Lessee's obligations hereunder or of any subsequent or any continuing breach." ("Clause 14.06") The Events Leading to Arbitration

On 7.2.2020, GCH issued a formal notice of its intention to terminate the Lease Agreement effective 31.3.2020 ("GCH's Letter"). DK replied by letter dated 14.2.2020 ("DK's Letter"), in which it acknowledged GCH's stated intention to terminate, characterised the proposed termination as a default under the Lease Agreement, and demanded payment of the full rental sum for the unexpired Guaranteed Period totalling RM12,368,320.89.

Notwithstanding DK's demand for the full unexpired Guaranteed Period sum, DK continued to accept monthly rental payments from GCH throughout the remainder of the Guaranteed Period. DK also, on various occasions, invoked provisions of the Lease Agreement such as Section 6.05 to demand maintenance and upkeep of the Hypermarket Facility.

DK further filed a suit in the Kuching High Court (Suit No. KCH 22NCvC-15/5-2020) in which it claimed payment of the rental for the unexpired Guaranteed Period but notably did not seek vacant possession. The Arbitration Proceedings

On 5.1.2023, DK commenced arbitration against GCH by delivering a Notice of Arbitration dated 30.12.2022. The arbitration was formally registered on 20.3.2024 and Dato' Malik Imtiaz Sarwar was appointed as the sole arbitrator ("Tribunal").

The principal issues agreed between the parties and placed before the Tribunal for determination were:

(a)Whether GCH had prematurely and unilaterally terminated the Lease Agreement and/or ceased business operations at the Hypermarket Facility before the expiry of the Guaranteed Period, thereby breaching the BL Agreement and/or Lease Agreement; and

(b)Alternatively, whether there was a mutual understanding between the parties that the Lease would continue to subsist until it was novated to a new tenant and/or until the expiry of the Lease, and that GCH would continue settling its payment obligations until a new tenant was found. The Tribunal's Decision

The Final Award was issued on 20.6.2025 followed by the Interpretation on 13.8.2025. In the Final Award, the Tribunal found in favour of GCH on the following material grounds:

(a)The Tribunal accepted that GCH's letter dated 7.2.2020 prematurely terminated the Lease Agreement and constituted a repudiatory breach. This finding is not in dispute in these proceedings.

(b)However, the Tribunal found that DK had, by its conduct, condoned or waived GCH's breach and had elected to affirm the Lease Agreement. The Tribunal identified 5 distinct bases for this conclusion at paragraphs 119-120.5 of the Final Award:

(i) DK failed to determine the Lease Agreement and reenter the Hypermarket Facility (paragraph 120.1);

(v) DK filed the Kuching High Court suit claiming only unpaid rental for the unexpired Guaranteed Period and not vacant possession, conduct consistent with treating the Lease Agreement as subsisting (paragraph 120.5).

(c)In respect of the rental acceptance, the Tribunal expressly addressed DK's argument that acceptance under protest negated the legal effect of such conduct. The Tribunal relied on the Privy Council decision in R v Paulson and Others [1920] All ER Rep Ext 809 and the English Court of Appeal decision in Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 3 All ER 610 for the proposition that a landlord who accepts rent cannot avoid the implication of waiver or election merely by asserting a reservation of rights or accepting conditionally (paragraph 120.2).

(d)On the basis of the above findings, the Tribunal determined that DK's claims for the unpaid Guaranteed Period rental were not maintainable and dismissed DK's claims accordingly. C. THE PARTIES' POSITIONS DK's Position

In its OS and Affidavit in Support, DK relies on 2 grounds to set aside the Awards:

(a)The Tribunal decided matters beyond the scope of the arbitration and the parties' contemplation under Section 37(1)(a)(v) of the AA 2005; and

(b)The Awards are contrary to the public policy of Malaysia under Section 37(1)(b)(ii) of the AA 2005.

DK's original grounds, as pleaded in its Affidavit in Support, were 4 fold in respect of the excess of jurisdiction complaint:

(a)The Tribunal accepted that GCH's letter dated 7.2.2020 expressed an intention to terminate and that it clearly terminated the Lease;

(b)The Tribunal determined that DK's reply letter dated 14.2.2020 was a waiver or was insufficient to cross the threshold for repudiation;

(c)The Tribunal was wrong to rely on foreign authorities instead of the express non-waiver clause in Clause 14.06 of the Lease Agreement to conclude that the receipt of rental under protest did not negate the effect of conduct; and

(d)The Tribunal relied on the overruled case of Berjaya Times Square v M-Concept Sdn Bhd [2010] 1 MLJ 597.

In its initial written submissions, DK materially reformulated its case. It withdrew the other sub-grounds and concentrated its case on the Tribunal's alleged failure to consider and give effect to Clause 14.06. For the first time, DK characterised this complaint as a breach of natural justice, submitting that the Tribunal's reliance on Paulson(supra) and Woolgar(supra) without addressing Clause 14.06 constituted a breach of its obligation to consider the parties' pleaded case.

DK also introduced the concept of a "fork-in-the-road" determination, arguing that the validity of the Lease termination was the pivotal issue and that the downstream consequences of the Tribunal's finding on affirmation made the failure to consider Clause 14.06 outcome-determinative.

In its reply submissions, DK attempted to house its complaint within the excess of jurisdiction limb by drawing on the Federal Court's decision in Anas Construction Sdn Bhd v JKP Sdn Bhd [2024] 2 MLJ 543, by analogy, to argue that a failure to reason on an expressly pleaded contractual provision amounts to an excess of jurisdiction. DK also invoked the Singapore Court of Appeal's decision in CRW Joint Operation v PT Perusahaan Gas Negara [2011] SGCA 33 for the proposition that a breach of natural justice must have caused actual or real prejudice to the applicant. GCH's Position

GCH opposes the setting aside application on all grounds. In its initial submissions, GCH submits that:

(a)All the matters complained of were expressly pleaded and argued by both parties in the arbitration and fall squarely within the scope of the submission to arbitration;

(b)The Tribunal's reliance on foreign authorities is an ordinary exercise of its function as a decision-maker and does not constitute excess of jurisdiction;

(c) The merits of the Award, including the Tribunal's interpretation of contractual provisions, cannot be reviewed by the Court under Section 37 of the AA 2005, following the repeal of Section 42; and

(d)DK's challenge does not begin to approach the high threshold required to invoke the public policy ground under Section 37(1)(b)(ii).

In its written submissions in reply, GCH raises a preliminary objection in that the ground of breach of natural justice was never pleaded in DK's OS, Affidavit in Support, or Affidavit in Reply, and DK had orally confirmed to this Court at the hearing of Enclosure 3 on 29.1.2026 that it was not relying on that ground. GCH submits that DK cannot be permitted to expand its case through submissions.

GCH further submits that even on its merits, the breach of natural justice complaint fails because the Tribunal was not obliged to expressly address every argument advanced, the parties had a full opportunity to be heard, and the Award rested on multiple independent bases unrelated to the rental acceptance point.

(I) The Legal Framework: Setting Aside an Arbitral Award

The principles governing applications to set aside an arbitral award under Section 37 of the AA 2005 are well-settled and bear emphasis at the outset.

Section 37(1) of the AA 2005 provides that an award may be set aside by the High Court only if, relevantly:

(a)The party making the application provides proof that the award contains decisions on matters beyond the scope of the submission to arbitration (Section 37(1)(a)(v)); or

(b)The High Court finds that the award is in conflict with the public policy of Malaysia (Section 37(1)(b)(ii)).

The Federal Court in Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd [2020] 12 MLJ 198 has clearly established that courts do not review the merits of an arbitral tribunal's decision in a setting aside application. The grounds for curial intervention are narrowly circumscribed. An applicant does not have a right to a "correct" decision that can be vindicated by the courts; it has only a right to a decision that falls within the ambit of the parties' consent to arbitration and that was arrived at following a fair process: AKN v ALC [2015] SGCA 18.

In respect of the public policy ground, the Federal Court in Jan De Nul (M) Sdn Bhd v Vincent Tan Chee Yioun [2019] 2 MLJ 413 confirmed that public policy ought to be read narrowly and restrictively. Curial intervention should be sparingly used and is only warranted where upholding an arbitral award would shock the conscience, is clearly injurious to the public good, or constitutes a violation of the most basic notions of morality and justice. Mere errors of fact or law do not suffice.

It is further of critical significance that Section 42 of the AA 2005, which formerly permitted challenges to arbitral awards on questions of law, has been repealed. The High Court in Ketua Setiausaha Kementerian Dalam Negeri & Anor v Salconmas Sdn Bhd [2020] MLJU 476 held that the repeal was intended to ensure the finality and conclusiveness of all arbitral awards, and that awards can no longer be challenged on the ground that the arbitrator had fallen into an error of law. The effect of a nonwaiver clause on waiver is a question of law that the Court cannot look into.

Before considering the substantive merits of DK's application, this Court must address GCH's preliminary objection that the breach of natural justice ground was never pleaded and cannot be introduced by way of submissions.

In Originating Summons proceedings, affidavits constitute the pleadings. It is trite that parties are bound by their pleadings, and the Court will not decide on issues not pleaded: Saiman bin Umar v Lembaga Pertubuhan Peladang and another appeal [2015] 6 MLJ 492. Where a new ground is introduced through submissions without having been raised in the affidavits, this amounts to trial by ambush and should not be countenanced: Sufian bin Mohamad v Pengarah, Jabatan Bomba dan Penyelamat Malaysia Negeri Sarawak [2019] MLJU 2057.

In the present case, DK's Originating Summons, Affidavit in Support, and Affidavit in Reply consistently and unequivocally advanced only two grounds: excess of jurisdiction and public policy. The public policy ground as pleaded was specifically framed around the Tribunal's application of foreign case law, not around any procedural unfairness or failure of the right to be heard.

Further, DK orally confirmed to this Court at the hearing on 29.1.2026 that it was not relying on breach of natural justice as a ground for the setting aside application. However, DK now attempts to introduce that very ground through its written submissions.

DK's attempt in its reply submissions to rehabilitate the breach of natural justice argument by characterising it as subsumed within either the excess of jurisdiction or public policy limbs does not assist it. The pleaded case under public policy was specifically and narrowly framed around foreign authorities, not natural justice.

To expand it now to encompass a full breach of natural justice argument with its own distinct doctrinal requirements, including the necessity to show actual prejudice goes well beyond any legitimate characterisation of what was pleaded.

For these reasons, this Court holds that the breach of natural justice ground is not properly before the Court and should be disregarded. The setting aside application must accordingly be determined on its pleaded grounds of excess of jurisdiction and public policy alone.

However, this Court will, without prejudice to the foregoing, consider the breach of natural justice ground on its substantive merits in any event, for completeness.

DK's excess of jurisdiction complaint, as it emerged through the submissions, reduces to a single core argument: the Tribunal, in determining whether DK had waived GCH's breach or affirmed the Lease Agreement, relied on foreign common law authorities Paulson(supra) and Woolgar(supra) without giving adequate effect to Clause 14.06 of the Lease Agreement, which expressly excluded rental acceptance as a waiver. DK submitted that this amounts to the Tribunal deciding matters inconsistent with or beyond the parties' contemplation.

The legal principles applicable to this ground are well-established. In Sigur Ros Sdn Bhd v Master Mulia Sdn Bhd [2018] 3 MLJ 608 (affirmed by the Federal Court), the Court of Appeal held that the pleadings in arbitration the claims, responses, and replies define the disputes between the parties and the extent of jurisdiction.

The mandate and authority of the arbitrator is taken from those pleadings. The relevant inquiry is not whether the Tribunal possessed jurisdiction to conduct the arbitration, but whether it exceeded that jurisdiction by deciding a dispute or issue falling outside the agreed scope.

In PT Prima International Development v Kempinski Hotels SA and other appeals [2012] SGCA 35, the Singapore Court of Appeal confirmed that to determine whether a tribunal exceeded its jurisdiction, it is necessary to refer to the pleaded case of each party and the issues of law or fact raised in the pleadings to see whether they encompass the disputed issue.

Applying these principles, DK's excess of jurisdiction complaint is without merit. This Court has made the following findings:

(a)The issues of waiver, affirmation, estoppel, and the effect of the non-waiver clause in Clause 14.06 were all expressly raised and argued by DK throughout the arbitral proceedings in its Statement of Claim (paragraph 29), Reply (paragraph 19), Written Submissions (paragraph 73), and Reply Submissions (paragraph 10(e)). GCH responded to these contentions in its Defence (paragraphs 17 and 39(a)) and Submissions in Reply (paragraphs 55-67). These were squarely within the agreed scope of the arbitration.

(b)The foreign authorities of Paulson(supra) and Woolgar(supra) were cited by GCH in paragraphs 52-53 of GCH's Written Submissions in the arbitration. DK was fully aware of their invocation and responded to them in its Reply Submissions, seeking to distinguish them on the basis that the leases in those cases did not contain a guaranteed period provision. The Tribunal's adoption of those authorities cannot therefore be said to be beyond the parties' contemplation.

(c)The Tribunal was required to determine the competing positions on waiver, affirmation, and the effect of Clause 14.06. Its conclusions on those issues — whatever their merits — arose directly from and addressed the parties' competing positions. They were plainly within the scope of the arbitration.

(d)DK's arguments under this head are, in substance, an impermissible attack on the merits of the Tribunal's legal reasoning and conclusions. The Federal Court in Master Mulia(supra) and the Court of Appeal in Huawei Technologies (Malaysia) Sdn Bhd v Maxbury Communications Sdn Bhd & Another Appeal [2019] 6 CLJ 588 are unequivocal: an applicant cannot challenge an arbitral award on alleged points of law or errors of interpretation by the Tribunal, even if those errors have merit. Such challenges have no nexus with the setting aside application under Section 37(1).

(e)DK's reliance on Anas Construction(supra) is misplaced. Anas Construction concerned adjudication under CIPAA 2012, where the adjudicator's jurisdiction is narrowly and strictly delimited by the payment claim and payment response, and where both parties are prohibited from relying on provisions outside those documents without written consent.

(f) That statutory framework is fundamentally different from the AA 2005 framework, where the arbitral mandate is defined broadly by the parties' pleadings and submissions. In Anas Construction(supra), the adjudicator relied on a contractual clause (Clause 36.6) that neither party had raised or relied upon a paradigm excess of jurisdiction. Here, Clause 14.06 was expressly raised and argued by DK itself throughout the arbitration. The analogy does not hold.

For these reasons, the excess of jurisdiction ground fails.

This Court will proceed to consider the breach of natural justice complaint on its substantive merits, without prejudice to the finding in paragraph 28 above that it is not properly pleaded.

DK's complaint, in essence, is that the Tribunal failed to consider and apply Clause 14.06 in determining the issue of waiver and affirmation, relying instead on the foreign authorities of Paulson(supra) and Woolgar(supra). DK submits that this failure constitutes a breach of the Tribunal's obligation to consider the material issues submitted to it, amounting to a breach of natural justice.

The applicable legal principles are as follows. Natural justice does not demand that a party is entitled to receive responses to all submissions and arguments presented; only the right to be heard is fundamental: Allianz General Insurance Company (Malaysia) Bhd v Virginia Surety Company Labuan Branch [2020] 5 CLJ 345.

An arbitral tribunal is not obliged to repeat and address every argument advanced by a party; a tribunal is allowed to pick and choose arguments it deems necessary in arriving at its finding: Asean Bintulu Fertilizer Sdn Bhd v Wekajaya Sdn Bhd [2016] 1 LNS 1089 (affirmed by the Court of Appeal).

The requirement of natural justice is met when a party is given a fair opportunity to be heard; it does not extend to securing that party's acceptance by the Tribunal: Glomac Kristal Sdn Bhd v Norton Construction Sdn Bhd [2025] MLJU 4914.

Furthermore, as established by the Singapore Court of Appeal in CRW Joint Operation v PT Perusahaan Gas Negara [2011] SGCA 33 a case relied upon by DK itself to set aside an award on the basis of natural justice, the Court must be satisfied not only that there was a breach but also that the breach caused actual or real prejudice to the applicant. Where the same result could or would ultimately have ensued even if the arbitrator had acted properly, there is no basis for setting aside the award.

Applying these principles to the present facts, this Court finds that:

(a)The Tribunal was fully aware of DK's argument that the receipt of rental did not amount to waiver by reason of Clause 14.06. This was the central plank of DK's pleaded case on this issue.

(b)The Tribunal considered GCH's reliance on Paulson(supra) and Woolgar(supra) and rejected DK's attempt to distinguish them on the basis that the leases in those cases did not provide for a guaranteed period (paragraph 120.2(d) of the Final Award).

(c) The significance of above finding cannot be overstated. DK's distinguishing argument was precisely that the Guaranteed Period provision in the Lease Agreement set the contractual context apart from Paulson(supra) and Woolgar(supra) and it was precisely that contextual argument that the Tribunal considered and rejected.

(d) In doing so, the Tribunal necessarily engaged with the contractual matrix of the Lease Agreement, including the very matrix within which Clause 14.06 operates. A tribunal that considers and rejects a party's argument for distinguishing foreign authorities on contractual grounds has, in substance, engaged with those contractual grounds.

(e)The absence of an express citation of Clause 14.06 at paragraphs 119-120 of the Final Award does not, without more, establish that it was not considered. The Tribunal at paragraph 164 of the Final Award declared that it had "carefully reviewed the pleadings and evidence presented by the Parties" before making its determinations. This declaration carries presumptive weight and DK has not displaced it with any evidence to the contrary.

(f) Even assuming this Court accepts in DK's favour that the Tribunal erred in failing to apply Clause 14.06 to the rental acceptance finding, DK cannot satisfy the causation requirement.

(g) The Tribunal's affirmation conclusion rested on 4 additional and independent bases beyond rental acceptance:

(i) DK's failure to re-enter the Hypermarket Facility (paragraph 120.1);

(h)Even if the rental acceptance finding were entirely excised from the Award, the remaining 4 independent bases would in all likelihood have led the Tribunal to the same conclusion on affirmation.

(i) The breach of natural justice, if any, was therefore not causally connected to the outcome of the arbitration within the meaning of CRW Joint Operation(supra). There is accordingly no basis for setting aside the Award on this ground.

(j) It is further relevant that DK was given every opportunity to be heard on all the issues, including Clause 14.06 and the foreign authorities. DK raised Clause 14.06 at multiple stages of the arbitration. DK argued the distinction between the foreign cases and the present case in its Reply Submissions. DK was not denied the right to present its case.

(k) The complaint is not that DK was not heard, but that the Tribunal did not accept DK's argument which is precisely the kind of merits dissatisfaction that cannot ground a setting aside application.

(m) The difficulty with this argument is two-fold. First, as this Court has found at paragraphs 47(f)-(i) above, DK cannot satisfy the causation requirement even on the most favourable reading of its case. The affirmation conclusion rested on four independent bases entirely unconnected to the rental acceptance and Clause 14.06, and the outcome would in all likelihood have been the same even if the Tribunal had expressly addressed and applied Clause 14.06.

(n) The "fork-in-the-road" contention therefore proceeds from a false premise it assumes that the Clause 14.06 finding was the single pivot on which the Awards turned, when the Tribunal's own reasons make clear that it was not. Second, and more fundamentally, the "fork-in-the-road" framing is at its core a causation argument dressed in jurisdictional language.

(o) It does not identify any matter decided outside the scope of the arbitration; it identifies only a finding with which DK disagrees and argues that the disagreement is consequential. That is not a basis for setting aside an award.

For these reasons, the breach of natural justice complaint also fails on its substantive merits.

(V) Ground 3: Public Policy Under Section 37(1)(b)(ii)

DK's public policy ground, as originally pleaded, was that the Tribunal's application of the foreign authorities of Paulson(supra) and Woolgar(supra) which were not within the parties' contemplation at the time the Lease Agreement was drafted and the Tribunal's failure to consider Clause 14.06 rendered the Awards contrary to public policy.

In its later submissions, DK sought to subsume the breach of natural justice complaint within this ground as well.

The public policy threshold under Malaysian arbitration law is a high one. As the Federal Court confirmed in Jan De Nul(supra), the ground can only be invoked in deserving cases, namely where upholding the award would shock the conscience, be clearly injurious to the public good, or violate the most basic notions of morality and justice.

The Court of Appeal in Sigur Ros(supra) emphasised that public policy in the arbitration context ought to be read narrowly and restrictively. Curial intervention should be sparingly exercised and awards will not be set aside merely because they are irrational or unreasonable. The ground must be engaged in the higher sense, where some fundamental principle of law and justice is engaged.

By this standard, DK's public policy ground fails comprehensively for the following reasons:

(a)DK has not alleged any procedural illegality, fraud, or fundamental injustice affecting the arbitral process. DK was represented throughout the arbitration by experienced counsel, had ample opportunity to present its case, and was heard on all the issues.

(b)At its highest, DK's complaint is that the Tribunal applied general common law principles on waiver and affirmation in a manner that overrode what DK contends was a clear contractual exclusion in Clause 14.06.

(c) Even if this were characterised as an error of law and this Court expresses no view on whether it was a mere error of law by an arbitral tribunal does not constitute a public policy violation. The threshold is far higher and must involve something approximating a fundamental injustice or a clear injury to the public good, which is entirely absent here.

(d)DK's attempt to characterise the Tribunal's legal conclusions as a public policy violation is precisely the type of manoeuvre that the courts have repeatedly and consistently rejected as an impermissible backdoor challenge to the merits.

(e) As this Court noted in Salconmas(supra), permitting a challenge to what is in substance a question of law under the guise of public policy would entirely undermine Parliament's deliberate decision to repeal Section 42 of the AA 2005. That, ironically, would itself be contrary to the public policy underlying the AA 2005.

(f) There is nothing in the Awards that shocks the conscience, is clearly injurious to the public good, or violates the most basic notions of morality and justice. This is a commercial dispute between sophisticated commercial parties, resolved through a mutually agreed arbitration mechanism, on issues of commercial contract law.

(g)For completeness, this Court addresses DK's specific pleaded contention that the application of Paulson(supra) and Woolgar(supra) was objectionable because those foreign authorities were not within the parties' contemplation at the time the Lease Agreement was drafted in 2010.

(h) This contention is without substance and does not approach the public policy threshold. An arbitral tribunal applies the law as it finds it, including principles established by foreign courts that have been received into the common law. The invocation of Privy Council and English Court of Appeal authority on the law of waiver and election is an entirely ordinary exercise of a tribunal's adjudicative function.

(i) There is no principle of Malaysian law and DK has cited none that requires parties to a commercial contract to have specifically contemplated, at the time of contracting, each legal authority that a future tribunal might consider.

(j)To hold otherwise would make the application of any legal principle not expressly referenced in the contract a potential public policy violation, a result that would be manifestly unworkable and would represent a radical departure from the minimal interventionist approach to arbitration enshrined in Section 8 of the AA 2005.

The public policy ground accordingly fails.

For completeness, this Court notes that DK initially complained that the Tribunal had relied on the overruled case of Berjaya Times Square(supra). DK has since conceded in its Affidavit in Reply (Enclosure 20) that Berjaya Times Square(supra) had not been overruled at the time the Awards were issued. This ground is therefore a non-issue and nothing further needs to be said about it.

In any event, the Tribunal relied on Berjaya Times Square(supra) only for the general principle that agreements ought to be interpreted contextually a general principle that was not affected by the Federal Court's subsequent decision in Lim Swee Choo & Anor v Ong Koh Hou @ Won Kok Fong And Another Appeal [2026] 1 MLRA 1, which overruled Berjaya Times Square only in respect of contractual breach and the restitutionary remedy for total failure of consideration.

Reading all the submissions together, it is apparent that DK's real grievance is with the Tribunal's substantive legal conclusion that the receipt of rental payments, notwithstanding protest, constituted an act of affirmation inconsistent with the plain wording of Clause 14.06.

That is a legitimate legal disagreement, and one that might have found a receptive audience under the old Section 42 regime which permitted appeals on questions of law. Parliament has, however, deliberately removed that avenue of challenge.

The narrow grounds available under Section 37 are not a substitute for merits review. DK has not established any of those grounds on the facts of this case. The Tribunal decided within its jurisdiction, applied authorities placed before it by the parties themselves, and arrived at a conclusion that whatever its correctness on the merits did not violate any fundamental principle of law, justice, or public policy.

For the reasons set out above, the Plaintiff's OS in Enclosure 1 to set aside the Awards are hereby dismissed with costs of RM12,000.00 subject to allocatur. Dated this 13th day of April 2026 RAJES RAGHAVJI JUDICIAL COMMISSIONER HIGH COURT CONSTRUCTION COURT 1 KUALA LUMPUR COUNSEL: For the Plaintiff James Ding Tse Wen (Messrs C.H. Tay & Partners) For the Defendant Jimmy Liew and Ching Hao Yan (Messrs Shearn Delamore & Co.) Case(s) referred to: R v Paulson and Others [1920] All ER Rep Ext 809 Berjaya Times Square v M-Concept Sdn Bhd [2010] 1 MLJ 597 Anas Construction Sdn Bhd v JKP Sdn Bhd [2024] 2 MLJ 543 CRW Joint Operation v PT Perusahaan Gas Negara [2011] SGCA 3 Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd [2020] 12 MLJ 198 AKN v ALC [2015] SGCA 18 Jan De Nul (M) Sdn Bhd v Vincent Tan Chee Yioun [2019] 2 MLJ 413 Saiman bin Umar v Lembaga Pertubuhan Peladang and another appeal [2015] 6 MLJ 492 Sufian bin Mohamad v Pengarah, Jabatan Bomba dan Penyelamat Malaysia Negeri Sarawak [2019] MLJU 2057 Sigur Ros Sdn Bhd v Master Mulia Sdn Bhd [2018] 3 MLJ 608 PT Prima International Development v Kempinski Hotels SA and other appeals [2012] SGCA 35 Huawei Technologies (Malaysia) Sdn Bhd v Maxbury Communications Sdn Bhd & Another Appeal [2019] 6 CLJ 588 Allianz General Insurance Company (Malaysia) Bhd v Virginia Surety Company Labuan Branch [2020] 5 CLJ 345 Asean Bintulu Fertilizer Sdn Bhd v Wekajaya Sdn Bhd [2016] 1 LNS 1089 Glomac Kristal Sdn Bhd v Norton Construction Sdn Bhd [2025] MLJU 4914 CRW Joint Operation v PT Perusahaan Gas Negara [2011] SGCA 33 Lim Swee Choo & Anor v Ong Koh Hou @ Won Kok Fong And Another Appeal [2026] 1 MLRA 1 Legislation(s) referred to: Rules of Court 2012 Arbitration Act 2005 ("AA 2005")