Glomac Kristal Sdn Bhd v Norton Construction Sdn Bhd (WA-24C(ARB)-30-07/2025)

[12] The Architect subsequently issued Certificates of Practical Completion as follows: a) CPC for Section 1 (GL1–22) issued on 8.4.2015; b) CPC for Section 2 (GL22–34) issued on 28.4.2016; and c) CPC for Section 2 (remaining works of the main building) issued on 15.6.2016. [13] The Architect further issued Certificates of Making Good Defects (“CMGD”) as follows: a) CMGD for Section 1 (GL1–22) issued on 4.12.2018; b) CMGD for Section 2 (GL22–34) issued on 17.12.2018; and c) CMGD for Section 2 (remaining works of the main building) issued on 14.9.2018. S/N GKqeypYBZ0eSzK4xeCkkfg [14] The Architect for the Project then issued a Final Certificate of Payment on 24.1.2019 C. ARBITRATION PROCEEDINGS [15] With disputes and differences having arisen between the Defendant and the Plaintiff, the Defendant initiated arbitration proceedings against the Plaintiff to recover the unpaid certified sums due under the Contract together with inter alia, GST reimbursement, deduction of liquidated damages (“Arbitration Proceedings”) wherein the Plaintiff had mounted claims of liquidated damages and back-charges against Defendant. [16] The Arbitration Proceedings commenced in 2019. However, it took 6 years (due to a variety of intervening events not relevant for the purpose of the applications before this court) to finally conclude with the issuance of the Award by the learned Arbitrator, confirming that the certified sums were wrongfully withheld and that Plaintiff’s claims were without merits save and except a portion of set-off allowed by the Arbitrator. [17] In her Award issued on 30.4.2025, the learned Arbitrator awarded the following reliefs i.e. for Plaintiff to pay Defendant:

the sums of RM10,044,594.88 consisting of certified sum due, GST reimbursement, loss & expenses less set-off/counter claim allowed, the detailed breakdown provided in the Award;

costs in the sum of RM791,750.00;

interest at the rate of Maybank Base Lending Rate plus one

percent in respect of RM10,044,594.88 from 6.3.2019 up to the date of the Award;

interest at the rate of 5% per annum in respect of the sum of RM10,044,594.88, or any part thereof which remains outstanding, from the date of the Award till the date of final settlement, and

interest at the rate of 5% per annum in respect of the costs in the sum of RM791,750.00, or any part thereof which remains outstanding, from the date of the Award till the date of final settlement. (collectively referred to as “Awarded Sums”). [18] Further under the Award, the Arbitrator dismissed all other claims, counterclaims and reliefs sought by the Defendant and the Plaintiff. [19] Upon the issuance of the Award, Defendant via its solicitors issued a letter dated 20.5.2025 to Plaintiff demanding that the Plaintiff pays the Awarded Sums under the Award within 14 days thereon, failing which the Defendant would proceed with enforcement proceedings against Plaintiff. [20] On 5.6.2025, the Plaintiff responded that they were in the process of reviewing the Award and sought for 2 weeks thereof to respond to the Defendant’s solicitors’ said letter. However, no response was forthcoming from the Plaintiff to the Defendant, be it within the said timeframe. S/N GKqeypYBZ0eSzK4xeCkkfg D. COURT PROCEEDING Encl 1- OS 30 (Setting Aside Application) [21] The following cause papers were filed:

Originating Summons dated 29.7.2025;

(ii) Affidavit in Support of Plaintiff affirmed by Syed Zawawi Syed Ibrahim on 29.7.2025;

(iii) Affidavit in Reply of Defendant affirmed by Khor Lye Hock on 21.8.2025 &

(iv) Affidavit in Reply of Plaintiff affirmed by Syed Zawawi Syed Ibrahim on 17.9.2025. OS 32(Enforcement Application) [22] The following cause papers were filed:

Originating Summons dated 11.8.2025;

(ii) Affidavit in Support of Defendant affirmed by Khor Lye Hock on 11.8.2025;

(iii) Affidavit in Reply of Plaintiff affirmed by Syed Zawawi Syed Ibrahim on 4.9.2025, and

(iv) Affidavit in Reply of Defendant affirmed by Khor Lye Hock on 9.9.2025. [23] On 11.8.2025, prior to the first case management of the Setting Aside Application, the Defendant filed an application pursuant to section 37(7) of the Act, for amongst others that the Plaintiff deposit to this Court the Awarded Sums pending the Setting Aside Application (“Section 37(7) Application”). [24] However, before the hearing of the Section 37(7) Application, and at the direction of this Court to expedite the core matters, the S/N GKqeypYBZ0eSzK4xeCkkfg Defendant agreed to withdraw the said application and to address the Setting Aside Application and the Enforcement Application together instead. E. GOVERNING LEGAL PRINCIPLES [25] It is trite law that, pursuant to Section 36(1) of the Act, an award made by an arbitral tribunal pursuant to an arbitration agreement is final and binding on the parties. [26] Section 8 of the Act further provides that this Court shall not intervene in matters governed by the Act except where expressly permitted. This reflects the minimalistic approach to judicial intervention in arbitration and arbitration-related matters. [27] This brings us to Section 37 of the Act, which allows the Court to set aside an award on limited and specific grounds as set out in that section. Although the Plaintiff did not specify the exact subsection relied upon in support of its Setting Aside Application, it appears that the primary basis for the application is an alleged breach of natural justice and/or excess of jurisdiction. [28] In Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd [2020] 12 MLJ 198, the Federal Court articulated the governing principles applicable to an application to set aside an arbitral award, stating, inter alia: “[53] In the light of the above, we think that the guiding principles on the exercise of residual discretion when an S/N GKqeypYBZ0eSzK4xeCkkfg application for setting aside an award is grounded on breach of natural justice may be stated as follows:

first, the court must consider: (a) which rule of natural justice was breached; (b) how it was breached; and (c) in what way the breach was connected to the making of the award;

second, the court must consider the seriousness of the breach in the sense of whether the breach was material to the outcome of the arbitral proceeding;

third, if the breach is relatively immaterial or was not likely to have affected the outcome, discretion will be refused;

fourth, even if the court finds that there is a serious breach, if the fact of the breach would not have any real impact on the result and that the arbitral tribunal would not have reached a different conclusion the court may refuse to set aside the award;

fifth, where the breach is significant and might have affected the outcome, the award may be set aside;

sixth, in some instances, the significance of the breach may be so great that the setting aside of the award is practically automatic, regardless of the effect on the outcome of the award;

seventh, the discretion given the court was intended to confer a wide discretion dependent on the nature of the breach and its impact. S/N GKqeypYBZ0eSzK4xeCkkfg Therefore, the materiality of the breach and the possible effect on the outcome are relevant factors for consideration by the court; and

eighth, whilst materiality and causative factors are necessary to be established, prejudice is not a pre-requisite or requirement to set aside an award for breach of the rules of natural justice.” [54] Underlying these guiding principles is the policies and objectives of the New York Convention and the Model Law. As a matter of principle and policy, the courts will seek to support rather than frustrate or subvert the arbitration process. The role of courts in the arbitral regime in general is one of assistance supportive of the arbitral process and not one of interference with it. Bearing in mind the two primary objectives of the Model Law (respect for and preservation of party autonomy and ensuring procedural fairness), the courts do not review the merits of the arbitral tribunal’s decision. [29] I am guided by the Federal Court’s decision in Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 2 MLJ 413, where the Federal Court held, inter alia, that: “[55] ... But in applying the concept for the purpose of setting aside an award under s 37 of the AA 2005, the concept of public policy ought to be read narrowly and more restrictively. The Court’s intervention should be sparingly used…… S/N GKqeypYBZ0eSzK4xeCkkfg [57] The court must evaluate the nature and impact of the particular breach in deciding whether the award should be set aside under s 37. The court must also consider the background policy of encouraging arbitral finality and minimalist intervention approach to be adopted in line with the spirit of UNCITRAL Model Law. The effect of ss 8, 9, 37 and 42 of the AA 2005 is that the court should be slow in interfering with or setting aside an arbitral award. The court must always be reminded that constant interference of arbitral award will defeat the spirit of the AA 2005 which for all intent and purposes, is to promote one-stop adjudication in line with the international practice... In this regard, the court needs to recognise the autonomy of the arbitral process by encouraging finality; and its advantage as an efficient alternative dispute resolution process should not be undermined.” (emphasis added) [30] In the case of Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd and another appeal [2021] 1 MLJ 1, the Federal Court, inter alia held: “[10] The principle is trite that courts do not exercise appellate jurisdiction over arbitration awards: see Pembinaan LCL Sdn Bhd v SK Styrofoam (M) Sdn Bhd [2007] 4 MLJ 113. The only provisions in the Act that provide for the setting aside of domestic awards are s 37(1) and s 42(1)–(4) of the Act (before its deletion).” S/N GKqeypYBZ0eSzK4xeCkkfg “[142] The grounds enumerated in section 37 need to be construed narrowly as they represent exceptions to the finality of arbitration awards (section 36). This is to avoid devaluing the arbitration agreement that arbitral awards are final and binding and also to preserve the autonomy of the forum selected by the parties by minimizing judicial interference in arbitral awards: Jan De Nul (supra).” [31] It is settled law that the burden of proving the existence of justifiable grounds to set aside an arbitral award lies on the party seeking such relief, See Ajwa For Food Industries Co (Migop), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395, where the Court of Appeal held as follows: “[13]...The onus is on the party making the application to provide proof. The court's discretion in setting aside arbitral award is now limited to the narrowly defined circumstances in line with the modern international arbitral practice... The court should be restrained from interference unless it is a case of patent injustice which the law permits in clear terms to intervene...”. [32] Liza Chan Sow Keng JC (as she was then) in Tune Group Sdn Bhd & Ors v Padda Gurtaj Singh and another case [2022] MLJU 2286 succinctly outlined by the Court’s role in setting aside arbitral awards has been, where the Court observed and held, inter alia, as follows: S/N GKqeypYBZ0eSzK4xeCkkfg “[22] The Chief Justice of Singapore, Menon CJ, in delivering the judgment of the Court of Appeal in AKN v ALC [2015] 3 SLR 488; [2015] SGCA 18 cautioned the courts against attempts by ingenious counsels to disguise what is substantially an appeal on the legal merits of an arbitral award as a challenge on process failures during the arbitration: ….. … [23] As such, the Court must be wary if the applicants in applying to set aside the award are seeking to widen the strictly narrow grounds for challenge in s.37 and s.39 AA, and not be carried away by the applicants’ resort to convoluted or fanciful arguments and interpretation of the facts, evidence and law which at any rate are not within the province of the court but is to be as found and determined by the tribunal as arbiter of fact and evidence. [24] The Court is to take note of trite principles as follows:

24.1 The court is not an appellate court, and does not sit in appeal of a final arbitral award ……;

24.2 An applicant cannot challenge the merits of, re-open and/or re-argue the findings and decision of the Tribunal on the substantive issues of the dispute decided by Tribunal……;

24.3 The Award cannot be challenged on alleged points of law or interpretation of law…..; S/N GKqeypYBZ0eSzK4xeCkkfg 17 24.4 The limited grounds of challenge are as set out in ss. and 39 AA ……..;

24.5 Breaches of natural justice and public policy ought to be manifestly obvious and/or against the conscience or morality and entail a very high threshold…..;

24.6 Matters solely reserved to the Tribunal:

24.6.1 finding and assessment of the facts and evidence…;

24.6.2 interpretation of law ……;

24.7 In the context of a final arbitral award and the AA, the term in “excess of jurisdiction” is a reference to whether a dispute, matter or issue as determined by the Tribunal is within the terms or scope of a submission to arbitration, and therefore within the jurisdiction of the Tribunal. It is not a reference to whether the Tribunal made a wrong decision or an error of law in its interpretation, construction or application of a contract, a term thereof or the law in its determination and decision on the dispute or matter that was without question submitted to arbitration and within its jurisdiction to determine……..Otherwise, every challenge as to the correctness of an arbitration award would be said to be made without jurisdiction and amenable to appeal in circumvention of the AA…….”. S/N GKqeypYBZ0eSzK4xeCkkfg [33] It is to be note that Court of Appeal in Tune Group Sdn Bhd & Ors v Padda Gurtaj Singh and another appeal [2023] 6 MLJ 345 affirmed the above decision and held: “(40) It ought to be noted that any attempt by the appellants to question the substantive merits of the arbitrator’s finding on the concluded contract … was impermissible by virtue of s 36 of the AA because that would constitute an appeal on the award which plainly could not be entertained…” [34] Hence based on the above authorities, I am mindful that it is trite law that, in a setting-aside application under Section 37 of the Act, the High Court does not sit as an appellate body to review the correctness of an arbitral award on its merits. The arbitral tribunal is the sole authority entrusted with evaluating the evidence and making findings of fact. It is not the function of this Court to revisit or scrutinise the merits of the parties’ respective cases as presented before the tribunal. I further recognise that frequent judicial interference with arbitral awards would undermine the very purpose and efficacy of arbitration. F. ANALYSIS OF THE PLAINTIFF'S GROUNDS FOR SETTING ASIDE [35] Based, inter alia, on the above principles, I now proceed to address the five specific grounds advanced by the Plaintiff, in the sequence presented by learned counsel for the Plaintiff during the hearing of this matter and as per the Plaintiff’s submissions: S/N GKqeypYBZ0eSzK4xeCkkfg ISSUE (I): Whether The Award Ordering The Refund of GST Tax of RM 2,108,945.43 to Defendant Amounts To Unjust Enrichment The Plaintiff's Position [36] The Plaintiff contends that the Arbitrator erred in law and fact in ordering the Plaintiff to reimburse GST of RM2,108,945.43 to the Defendant. The Plaintiff's arguments, as presented in its written submissions before this Court may be summarised as follows:

The Contract and the SA were both concluded before the coming into force of the Goods and Services Tax Act 2014 (“GST Act 2014”) on 1.4.2014, and the Contract contains no provision relating to GST;

Under Section 9(3) of the GST Act 2014, GST is a statutory liability of the supplier (Defendant), not the recipient (Plaintiff), and there is no statutory right to recover GST from the consumer unless expressly provided in the contract;

The Plaintiff relies on the Court of Appeal decision in Mandarin Pavilion Sdn Bhd v Chang Vui Lun & Anor [2019] 3 MLJ 395, which held that suppliers cannot claim GST reimbursement absent an express contractual right;

That Clause 13.1 of the Contract expressly prohibits any adjustment to the Contract Sum except as expressly provided in the Contract, and there is no provision authorising GST reimbursement or price review;

That the Contract qualifies as a "non-reviewable contract" under Section 187 of the GST Act 2014, which zero-rates S/N GKqeypYBZ0eSzK4xeCkkfg supplies made under contracts entered into more than 2 years before 1.4.2014 that provide no opportunity for price review. The Plaintiff cites the High Court decision in Konsortium CMC Engineering Sdn Bhd – Colas Rail SA – Uni-Way Sdn Bhd v Ketua Pengarah Kastam, Jabatan

The contracts must be interpreted based on their terms at the time of execution, not revised retrospectively in light of later statutory changes, relying on Mulpha Pacific Sdn Bhd v Paramount Corp Bhd [2003] 4 MLJ 357 and Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai

The Arbitrator's finding therefore leads to unjust enrichment of the Defendant and is contrary to the Contract and the statutory framework. The Defendant's Position [37] The Defendant's position, as gleaned from its written submissions, is as follows:

The Arbitrator DID in fact consider Section 9(3) of the GST Act 2014 and Mandarin Pavilion(supra), as evidenced in the Arbitrator reference to the same in paragraphs 104(ix)-(x) and 105(xv)(d)-(e) of the Award, and the Plaintiff's allegation of failure to consider is therefore unfounded;

Whether the Defendant can charge GST if the Contract is silent is a matter of interpretation of contractual terms, which S/N GKqeypYBZ0eSzK4xeCkkfg is a merits issue and not a ground for setting aside under

The issue of the Defendant including GST in its invoices is not contractual, but one of statutory tax compliance - GST is imposed by law, not by contract, and when the government introduced GST, compliance was mandatory irrespective of whether contracts are silent;

The argument regarding Section 187 and zero-rated supply was never pleaded in the Arbitration proceeding, never raised in any of the Plaintiff's submissions before the Arbitrator, and does not appear in Plaintiff's affidavits in support - it is being raised for the first time in written submissions;

A setting aside application under Section 37 of the Act is not the forum to introduce new arguments of law or fact that were never ventilated before the tribunal;

The Plaintiff now seeks a declaration that "the supply under the Contract is zero-rated pursuant to Section 187 of the GST Act 2014", which has no place in a setting aside application - this is not an appeal, and certainly not a forum to obtain declaratory relief on tax classification;

If Glomac genuinely believes the supply is zero-rated under Section 187, the proper avenue is with the Royal Malaysian Customs Department, not the Defendant. Konsortium CMC Engineering(supra) authority relied upon by the Plaintiff involved judicial review against Customs authorities, not a dispute between contracting parties. S/N GKqeypYBZ0eSzK4xeCkkfg Court’s Analysis and Findings [38] Having carefully considered the detailed submissions of both parties, the relevant portions of the Award, and the applicable legal principles, I now turn to my findings. [39] First, the factual matrix: The learned Arbitrator dedicated 12 pages (paragraphs 103–112) of the Award to the GST issue. The learned Arbitrator expressly set out the Plaintiff’s contentions in paragraph 104 of the Award and considered the Plaintiff’s various arguments, including section 9(3) of the GST Act 2014 and the authorities relied upon. [40] The learned Arbitrator also took into account the Defendant’s responses to the Plaintiff’s allegations, which were set out in paragraph 105 of the Award. [41] Upon reviewing the Award, I note that in paragraph 106 the learned Arbitrator expressly stated: “Upon review of all the submissions and the authorities submitted, I find as follows:” The learned Arbitrator then referred to the relevant statutory provisions, in particular sections 33 and 38 of the GST Act 2014, as well as the applicable authority of Ketua Pengarah Kastam v Metrogold Commercial Sdn. Bhd. [2023] MLJU 3028 on the GST mechanism, in addition to the GST guidelines issued by the Royal Malaysian Customs Department. S/N GKqeypYBZ0eSzK4xeCkkfg [42] The learned Arbitrator provided her analysis in respect of the Plaintiff’s contention. At paragraphs 106(v)& (vi) of the Award, she concluded: "(v)The Respondent, as the developer, is the recipient and consumer of the services or supply rendered by the Claimant and is liable to pay for the GST reflected in the tax invoices issued by the Claimant for works executed under the Contract.

(vi)In accordance with Section 38 of the GST Act, the Respondent is entitled to claim input tax credit by offsetting the GST paid to Claimant against its own output tax liability on supplies made to the purchasers of the commercial lots forming part of the development” [43] I further note that the learned Arbitrator proceeded to consider the parties’ submissions on Clause 4 of the Contract and found that the compliance obligations thereunder were confined to statutory requirements relating to the “design” of the works. She accepted that this interpretation accords with the purpose of Clause 4, namely that any non-compliance in the design would ultimately affect the issuance of the Certificate of Completion and Compliance (“CCC”). [44] Upon reviewing Clause 4.4 of the Contract, the learned Arbitrator held that the phrase “in respect of the execution of the Works and all temporary works” did not extend to obligations arising under the GST Act 2014 or any similar consumption tax regime. [45] The Arbitrator was of the view that the clause was not intended to regulate or allocate statutory tax liabilities, which are imposed on S/N GKqeypYBZ0eSzK4xeCkkfg taxable supplies pursuant to national law. The learned Arbitrator also noted that the Plaintiff did not avail itself of its contractual right under Clause 30.4 of the Contract to set off any GST sums paid to the Defendant during the course of the Contract. [46] The learned Arbitrator also considered at length the Plaintiff’s contention that the parties had agreed to a 50% sharing of the GST. I find that the Arbitrator gave detailed reasons in rejecting that position, as set out at paragraphs 106(xi) to (xvi), 107, 108 and 109 of the Award. [47] I also note that the learned Arbitrator in the Award acknowledged that the sum of RM2,108,945.43, being the balance of GST unpaid by the Plaintiff, was not disputed by the parties, and that the Defendant had produced documentary evidence to support its contention that the requisite GST had been fully paid to Customs. [48] In conclusion on the GST issue, at paragraph 112 of the Award, the learned Arbitrator, having considered the parties’ submissions, the evidence, and the relevant authorities, found on a balance of probabilities that the Defendant had established its entitlement to RM2,108,945.43 as GST reimbursement. The learned Arbitrator further found that the Respondent had failed to prove its entitlement to the counterclaim of RM1,777,749.07 or to any set-off against the unpaid sums under the interim certificates. [49] This demonstrates that the learned Arbitrator had considered the Plaintiff's submissions in detail. The mere fact that she rejected the Plaintiff’s contentions does not amount to a failure to consider them. S/N GKqeypYBZ0eSzK4xeCkkfg As explained in the section on the applicable legal principles above, natural justice requires only that a tribunal consider the parties’ submissions; it does not require the tribunal to accept them. [50] Second, the nature of the Plaintiff’s complaints: The Plaintiff’s arguments on GST fundamentally challenge the learned Arbitrator’s:

interpretation of the Contract (in particular Clause 13.1);

understanding and application of the GST Act 2014;

treatment of the authorities relied upon by the Plaintiff; and

conclusion on the allocation of GST liability between the parties. [51] These are paradigmatic questions of contractual interpretation and legal reasoning which fall squarely within the province of the arbitral tribunal. As held by the Federal Court in The Government of India v Cairn Energy India Pty Ltd & Anor [2011] 6 MLJ 441 at [36]: "…The construction of an agreement is a question of law. It follows that if the construction of an agreement is the sole matter that is referred to arbitration, it is not open for challenge in the broad sense. .... Nevertheless, it still may yet be challenged in extremely limited circumstances, i.e. if the award is tainted with illegality..." [52] No “illegality”, in the sense contemplated by the Federal Court, has been demonstrated. The Learned Arbitrator’s determination that the Defendant, as a taxable person under the GST regime, was statutorily obliged to levy GST on taxable supplies, with the result that the amount became a debt due from the Plaintiff as the S/N GKqeypYBZ0eSzK4xeCkkfg recipient of those supplies, constitutes a finding of mixed fact and law. [53] The arbitral tribunals are required to consider binding precedents, but they are also entitled - indeed, required - to distinguish cases on their facts, to interpret statutes in light of the specific contractual matrix before them, and to reach conclusions that they consider legally sound. An arbitrator's decision to prefer one line of authority over another, or to interpret a statute in a particular way, is an exercise of the arbitrator's mandate, not an excess of it. [54] Third, the Section 187 zero-rating argument: I note that this argument regarding "non-reviewable contracts" and zero-rating under Section 187 of the GST Act 2014 was conspicuously absent from the Plaintiff's case during the Arbitration Proceeding. It does not feature in the Statement of Defence and Counterclaim, it was not addressed in any of the Plaintiff's submissions to the Arbitrator, and it is not mentioned in the Plaintiff's affidavits in support of the Setting Aside Application. [55] The Defendant correctly submits that a setting aside application is not the proper forum to introduce entirely new legal arguments that were never ventilated before the tribunal. To permit such an approach would be to subvert the principle of finality that underpins the arbitral process. If parties could simply raise new arguments at the setting aside stage, arbitration would lose its essential character as a one-stop dispute resolution mechanism. S/N GKqeypYBZ0eSzK4xeCkkfg [56] Moreover, the Plaintiff’s application to set aside the Award on the ground that "the supply under the Contract is zero-rated pursuant to Section 187 of the GST Act 2014" - has no place whatsoever in a Section 37 application. This is not an appeal. It is not a judicial review. It is a narrow supervisory jurisdiction confined to the specific statutory grounds set out in Section 37(1) of the Act. [57] As the Defendant rightly points out, if the Plaintiff genuinely believes that the supply qualifies for zero-rating under Section 187, the proper recourse is an application to the Royal Malaysian Customs Department, or if necessary, judicial review proceedings against that department. The case relied upon by the Plaintiff, Konsortium CMC Engineering(supra), involved precisely such judicial review proceedings challenging a decision of the Customs authorities - it was not, as the Plaintiff appears to suggest, authority for the proposition that contractual disputes over GST should be re-litigated in setting aside applications. [58] Fourth, the question of unjust enrichment: The Plaintiff argues that requiring it to pay GST that the Defendant is "statutorily liable for" constitutes unjust enrichment of the Defendant. This argument is circular. It assumes the very question in dispute - namely, whether as a matter of contract and statute, the Defendant was entitled to charge and recover GST from the Plaintiff. [59] The Arbitrator addressed the unjust enrichment contention and concluded that it did not arise on the facts. Her reasoning, as set out at paragraph 106 of the Award and referred to earlier, was that the Defendant had made taxable supplies pursuant to the Contract, S/N GKqeypYBZ0eSzK4xeCkkfg that the GST regime mandated the imposition of GST on those supplies, and that the incidence of that tax properly rested with the Plaintiff as the recipient. Whether this Court might have reached the same conclusion is not the inquiry. The question is whether the Arbitrator had the jurisdiction to decide the issue and whether the decision was reached in a procedurally fair manner. Conclusion on Issue (i) [60] For the reasons above, I find that the Plaintiff's challenge to the GST award fails on multiple grounds:

The Plaintiff's arguments on contractual interpretation, statutory construction, and the application of case law are all merits-based challenges that fall outside the scope of Section 37.

The Section 187 zero-rating argument, having never been raised in the arbitration, cannot now be advanced for the first time in a setting aside application.

No excess of jurisdiction, breach of natural justice, or violation of public policy has been demonstrated. [61] The Plaintiff's complaints under this head amount to nothing more than dissatisfaction with the outcome of the Arbitrator's determination on the GST issue. That is not a ground for setting aside the Award. S/N GKqeypYBZ0eSzK4xeCkkfg ISSUE (II): Whether The Arbitrator Failed To Consider That Plaintiff Had Made Direct Payments To Nominated Sub-Contractors (Set-Off Of RM880,064.19) The Plaintiff's Position [62] The Plaintiff's second ground, as articulated in its written submissions, is that the Arbitrator failed to give due consideration to the direct payments totalling RM880,064.19 that the Plaintiff made to the Nominated Sub-Contractors (NSCs) under Interim Certificates 45, 49, and 50, and that requiring the Plaintiff to pay the Defendant on top of these payments results in unjust enrichment. [63] The Plaintiff's contention may be summarised as follows:

Clause 27.6 of the Contract expressly empowers the Employer (Glomac) to pay NSCs directly where the Contractor (Norton) fails to furnish proof of payment;

The Plaintiff's witness, RW-1 (Syed Zawawi), gave testimony that the Defendant failed to pay the NSCs and that the Plaintiff intervened to avoid further delay;

The Arbitrator rejected this evidence "without adequate reasoning" and failed to give effect to the contractual mechanism;

Even assuming some procedural non-compliance with Clause 27.6, the substantive effect is undisputed: the Plaintiff paid the NSCs, the Defendant was relieved of its contractual obligation to pay the same NSCs, and the Defendant obtained a tangible financial benefit at the Plaintiff's expense;

The Arbitrator's conclusion that there was no unjust enrichment because "the Defendant has not received any payment" is a fundamental legal error, as unjust enrichment does not require actual receipt of money but includes relief from a liability or obligation;

Section 71 of the Contracts Act 1950 and the High Court decision in Kumpulan Teknik Sdn Bhd v Murad Hashim Communication Sdn Bhd [2012] 8 MLJ 573 establish that a person who obtains a benefit from another's non-gratuitous act must compensate for it;

That the Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 confirms that retaining such a benefit without compensating the party who provided it is unjust. The Defendant's Position [64] The Defendant's position on this issue, as set out in its written submissions, may be summarised as follows:

The Award demonstrates that Clause 27.6 was analysed at length, particularly in paragraphs 79–97. The assertion that the issue was not considered is therefore unsustainable.

The Arbitrator determined that the Plaintiff produced no evidence showing compliance with the procedural pre-conditions in Clause 27.6 before effecting any direct payment to the nominated sub-contractors.

It was also found that there was neither proof of the Defendant’s consent to such payments nor proof of any default on the Defendant’s part capable of activating Clause 27.6.

Those conclusions were reached after a review of the parties’ respective submissions and the evidential record. The present challenge in substance seeks a rehearing on the merits.

The Arbitrator scrutinised RW-1’s evidence and concluded that it was inconsistent and unsubstantiated by contemporaneous documents; no corroboration was identified for the alleged consent.

In cross-examination, RW-1 accepted that the Defendant had not agreed to the making of direct payments and that there was no documentary proof of default that would justify reliance on Clause 27.6.

Such determinations are core findings of fact for the Arbitrator. Disagreement with the evaluation of evidence does not engage any of the confined grounds for curial intervention under Section 37.

Reliance on Section 71 of the Contracts Act 1950 was neither pleaded nor advanced in the arbitration and is raised only at this setting-aside stage, which is procedurally irregular.

In any event, Section 71 concerns circumstances where no binding contract governs the parties’ relationship. Where a valid contract exists, the parties’ rights fall to be determined by that S/N GKqeypYBZ0eSzK4xeCkkfg bargain, without recourse to restitutionary relief. Defendant referred to Spring Max Capital Sdn Bhd v Johari bin Hasan [2020] MLJU 399 and Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd [2020] 1 LNS 442. Court’s Analysis and Findings [65] Having carefully reviewed the parties’ submissions and the relevant portions of the Award, my findings are as follows. [66] First, the assertion that the Arbitrator "failed to consider" this issue is demonstrably inaccurate. The Award dedicates 6 full pages (paragraphs 79 to 97) to the analysis of the direct payments issue. [67] The learned Arbitrator:

set out the relevant contractual provisions (Clause 27.6);

summarised the Plaintiff's case on direct payments;

summarised the Defendant's response;

examined the evidence, including RW-1's testimony and the contemporaneous documentary evidence;

made specific findings of fact on whether the pre-conditions in Clause 27.6 had been satisfied;

addressed the Plaintiff's argument on unjust enrichment; and

reached a reasoned conclusion. [68] The Arbitrator referred to Clause 27.6 and at paragraph 82 of the Award, the Arbitrator found: S/N GKqeypYBZ0eSzK4xeCkkfg “The Respondent did not provide any evidence to support its contention that there was delay on the part of the Claimant in making payments to the NSCs. There is no evidence before me that the Architect had requested for Claimant to provide proof that all amounts as due and included in the previous certificates have been discharged. [69] At paragraph 85-88 & 93 of the Award, the Learned Arbitrator found: "85.⁠ ⁠ The Respondent also did not provide any evidence to show that it had complied with the requirements in Clause 27.6 prior to making the direct payments.

86.⁠ ⁠ The Respondent also did not provide any evidence to show that the Claimant had consented to or agreed for the payments to be made directly to the NSCs.

87.⁠ ⁠ The Claimant asserted that it had protested against the Respondent's conduct of making direct payments to the NSCs and Claimant provided a letter dated 27.2.2017 to support it contention.

88.⁠ ⁠ In that letter, Claimant stated that the Respondent released payment to NSCs without Claimant's knowledge. Claimant stated that it was done in December 2016 and then again in February 2017.

93.⁠ ⁠ The Respondent have not provided enough evidence to tilt the balance in its favour to support its contention that there was a delay on the part of the Claimant in making payment to NSCs or that the Architect had actually requested Claimant to furnish reasonable proof that all amounts stated as due and S/N GKqeypYBZ0eSzK4xeCkkfg included in the previous certificates have been discharged. Further, evidence also shows that payments were made without Claimant's knowledge and consent.” [70] These are classic findings of fact grounded in the learned Arbitrator’s assessment of the evidence placed before her. The Plaintiff does not, and indeed cannot, identify any procedural irregularity in the manner in which that evidence was received, evaluated, or weighed. What is advanced in substance is a disagreement with the outcome of that evaluative exercise. Such disagreement does not convert a merits determination into a breach of natural justice, nor does it furnish a legitimate basis for curial intervention or for setting aside the Award. [71] Second, Clause 27.6 of the Contract: The Plaintiff contends that the provision entitled it to make direct payments to the nominated sub-contractors (“NSCs”). A plain reading of Clause 27.6, however, shows that it does not confer a general power of direct payment; rather, it prescribes a specific procedural mechanism capable of being invoked only in defined circumstances. The learned Arbitrator found, on the evidence, that those circumstances were not established. [72] Third, the evidence of RW-1: The Plaintiff argues that RW-1's evidence was "uncontroverted". This submission cannot stand considering the Arbitrator's express findings. At paragraphs 83-84 & 89 of the Award, the Arbitrator found: S/N GKqeypYBZ0eSzK4xeCkkfg “83.⁠ I find that RW-1 gave contradictory statements in its testimony, sometimes stating that direct payment to NSC is part of common practice in construction industry, then went on to say that it is part of Glomac's (Respondent) practice to which the contractors are made known of such practice. Subsequently, during cross-examination, he had initially stated that the cheques addressed to the NSCs were passed through the Main Contractor and later went on to say that at the end of the project, the payment were directly made to the NSCs.

84.⁠ RW-1 testimony itself is not enough to support Respondent's assertion that the direct payment to NSC were due to Claimant's late payment to NSC and was done without malice. The Respondent did not provide any other evidence to support or collaborate its assertions.

89.⁠ Further, RW-1 during cross examination stated in agreement that the Claimant did not agree nor gave consent for any direct payments to be made by the Respondents to the NSCs.” [73] The assessment of witness credibility and the weight to be accorded to the evidence are paradigm examples of matters lying within the exclusive province of the arbitral tribunal. The tribunal, having had the advantage of seeing and hearing the witnesses and of evaluating the evidence in its totality, is uniquely placed to make those determinations. This Court, exercising supervisory rather than appellate jurisdiction, has no role in second-guessing such assessments or in substituting its own view of the evidence for that S/N GKqeypYBZ0eSzK4xeCkkfg of the tribunal. To do so would be to impermissibly trespass into the merits of the dispute. [74] Fourth, the unjust enrichment argument: The Arbitrator considered and rejected the Plaintiff's argument on unjust enrichment. At paragraphs 94-96 of the Award, she reasoned: “94.⁠ ⁠ The Respondent in its submission states that it would constitute unjust enrichment if this set-off is not allowed.

95.⁠ ⁠ Claimant asserts that it would not amount to unjust enrichment as the direct payments were made outside the framework of the Contract and that Claimant is merely claiming its legitimate entitlement under the Contract.

96.⁠ ⁠ I find that the Claimant did not receive this payment and therefore, cannot be said to be unjustly enriched. It has been established that the direct payments were made not in accordance with the contract provision and therefore were invalidly paid to the NSCs. I echo Y.A. Lim Chong Fong respected view, that'..., in the absence of an express and unambiguous direct payment right, an employer that pays a subcontractor directly will remain liable to pay the contractor for the same work..." [75] Whether one agrees or disagrees with that analysis, it cannot be characterised as a jurisdictional error or a breach of natural justice. I find that the learned Arbitrator identified the doctrine of unjust enrichment, directed herself to the applicable principles, applied those principles to the facts as she found them, and arrived at a conclusion. What the Plaintiff advances is, in substance, no more S/N GKqeypYBZ0eSzK4xeCkkfg than a disagreement with the learned Arbitrator’s legal reasoning and ultimate determination. Such dissatisfaction with the merits does not furnish a basis for curial intervention and cannot ground an application to set aside the Award. [76] Fifth, Section 71 of the Contracts Act 1950: The Plaintiff’s reliance on that provision was never raised in the arbitration. It finds no place in the Plaintiff’s pleadings, submissions, or evidence before the learned Arbitrator. In any event, even assuming that the point could properly be advanced before this Court, any analysis of that section has no bearing on the Plaintiff’s attempt to set aside the Award. It is beyond controversy that the parties are bound by a valid and subsisting contract, and the present dispute arises entirely from, and is regulated by, that contractual framework. [77] Sixth, the Plaintiff's reliance on Dream Property(supra) is misplaced. That case has no bearing on the present dispute, which concerns the proper interpretation and application of a contractual mechanism (Clause 27.6) within a subsisting contract. The Arbitrator’s assessment of the parties’ contractual nexus has no place in this Court’s examination of the Plaintiff’s Setting Aside Application. Conclusion on Issue (ii) [78] For all these reasons, I reject the Plaintiff's challenge to the Award on the direct payments issue. The Arbitrator considered this issue in detail, made findings of fact based on the evidence before her, and S/N GKqeypYBZ0eSzK4xeCkkfg reached conclusions that were open to her. No breach of natural justice, excess of jurisdiction, or violation of public policy has been established. The Plaintiff's reliance on Section 71 and Dream Property is misconceived and, in any event, impermissible given that these arguments were not raised in the arbitration. ISSUE (III): Whether Extension Of Time (EOT) Nos. 2, 3, And 4 Are Invalid The Plaintiff's Position [79] The Plaintiff's third ground, challenges the validity of EOT Nos. 2, 3, and 4. The Plaintiff's case on this issue is multi-faceted and may be summarised as follows:

The EOT Nos. 2, 3, and 4 are invalid because the Defendant failed to comply with the mandatory notice requirement in Clause 23.1 of the Contract, which requires written notice within 28 days of the commencement of the delay;

The compliance with Clause 23.1 is a condition precedent to any EOT entitlement, and failure to issue written notice within the prescribed time extinguishes the contractor's right to an EOT, relying on KL Eco City Sdn Bhd v Tuck Sin Engineering &

That the PAM 2006 Contract does not recognise "constructive notice" through attendance at meetings or general discussions - the contract must be read in accordance with its plain and ordinary meaning, citing Sunshine Fleet Sdn Bhd v Jabatan

That the Arbitrator erred in holding that the Defendant's non-compliance could be excused on the basis that the Architect and Plaintiff were aware of delays through site meetings and progress reports;

That the SA, specifically Clause 8, reset the completion date for Section 2 to 31.5.2015 and expressly provided that "no further extension of time will be given under the Original Contract in respect of any delays by the Employer (Glomac) in giving possession of the Site or any section of the Site up to and including 1.9.2013";

The delay events relied upon for EOT Nos. 2, 3, and 4 all occurred before 1.9.2013 or are merely the continuation of pre-SA delays, and are therefore contractually barred by Clause 8 of the SA;

Even if certain causes of delay continued after 1.9.2013, they are not independent new causes but merely the "spillover" of pre-

1.9.2013 delays, and Clause 8 prevents the Contractor(Defendant) from reviving settled delays by relabelling them;

The Arbitrator failed to analyse whether the alleged post-1.9.2013 delays were new, independent delaying events or merely continuations of matters settled by the SA;

That a condition precedent cannot be waived by silence or inaction - waiver must be clear, express, and unequivocal, and there is no such waiver here;

That progress reports cannot satisfy the Clause 23.1 notice requirement, as they are routine administrative documents, not formal notices invoking the Contractor's right to claim EOT. S/N GKqeypYBZ0eSzK4xeCkkfg The Defendant’s Position [80] The Defendant’s response to the Plaintiff’s challenge on the extension of time (“EOT”) determinations, distilled from its submissions, may be summarised in this way:

The Plaintiff is said to have misstated the Award. The Arbitrator did not equate discussions at site meetings with contractual notice; the EOTs allowed were granted on other grounds explained in her reasoning.

In particular, reference is made to paragraph 149 of the Award where the contention that matters raised during site meetings could amount to compliance with the notice provisions was expressly declined.

The various criticisms advanced by the Plaintiff — whether framed as legal error, procedural defect, double recovery, retrospectivity, or inconsistency with the contract — are, in essence, complaints that the Arbitrator reached the wrong conclusion on fact or law. Such matters, the Defendant argues, do not fall within the statutory grounds for setting aside under Section 37.

The Arbitrator is said to have undertaken the task required of her: she examined the evidence, construed the contract, considered the contemporaneous material, assessed the witnesses, and arrived at conclusions within the scope of her mandate.

It is emphasised that a party’s disagreement with those conclusions does not, without more, justify curial interference.

The Defendant further contends that the Plaintiff has not demonstrated how its grievances fit within any of the S/N GKqeypYBZ0eSzK4xeCkkfg recognised limbs of section 37, whether relating to capacity, notice, jurisdiction, procedure, arbitrability, or public policy.

The determinations made in relation to the EOT claims — including those concerning notice, the knowledge attributable to the relevant actors, the role of the Architect, and the analysis of delay — are characterised as matters of evaluation and fact entrusted to the tribunal.

Accordingly, the complaint is framed as no more than dissatisfaction with the result, rather than any denial of natural justice, jurisdictional transgression, or procedural unfairness. Court’s Analysis and Findings [83] The EOT issue is the most extensively argued ground in this Setting Aside Application. The Arbitrator's treatment of EOTs and Liquidated Damages(“LD”) spans dozens of pages of the Award (paragraphs 113-248 and 265-272). I have carefully considered the parties' detailed submissions on this issue, reviewed the relevant portions of the Award, and I make the following findings. [84] First, the Arbitrator's treatment of Clause 23.1 and the notice requirement: It is important to clarify what the Arbitrator actually found. Contrary to the Plaintiff's characterisation, the Arbitrator did not hold that "site meetings and progress reports" satisfied the Clause 23.1 notice requirement. At paragraph 149 of the Award, she expressly states: "149. However, I do agree with the Respondent's contention that site meetings and progress reports is insufficient to satisfy S/N GKqeypYBZ0eSzK4xeCkkfg the conditions under Clause 23.1(a) as it does not inform the Architect of the Claimant's intention to claim EOT and may not fulfill the 28-day timeframe prescribed thereunder. " [85] This finding is entirely consistent with the authorities cited by the Plaintiff on the proper construction of notice provisions. The Arbitrator clearly understood that Clause 23.1 contemplates a specific, written notice identifying the delaying event and notifying the Architect of the Contractor's intention to claim an EOT. [86] However, the Arbitrator went on to make critical findings of fact that are not canvassed by the Plaintiff's submissions. Specifically, at paragraphs 151-159 of the Award, she found:

That the Plaintiff's own conduct demonstrated that it was fully aware of the delays and their causes throughout the Project;

That the Plaintiff had signed multiple Variation Orders acknowledging the delay events and their impact on the programme;

That the Plaintiff had itself issued an invoice for liquidated damages that was calculated based on the revised completion dates in EOT Nos. 2 and 3, thereby ratifying those EOTs;

That the Plaintiff had never, at any point during the currency of the Project, objected to the absence of formal written notices under Clause 23.1;

That the Plaintiff's conduct over several years was inconsistent with a position that the EOTs were invalid for want of notice.

accepted the rationale of the cases of KL Eco City Sdn Bhd v Tuck Sin Engineering & Construction Sdn Bhd & Anor S/N GKqeypYBZ0eSzK4xeCkkfg [2020] 1 LNS 2234 & Tropicon Contractors Pte Ltd v Lojan Properrties Pte Ld [1989] 3 MLJ 2169 regarding EOTs and waiver of notice. [87] Based on these findings, the Arbitrator concluded that the Plaintiff had waived strict compliance with Clause 23.1 and was estopped from asserting the absence of notice as a basis for denying the EOTs. These are classic findings of fact based on an assessment of the parties' conduct and the contemporaneous documentary evidence. [88] Second, the law on waiver and estoppel: The Plaintiff argues that a condition precedent cannot be waived by silence or inaction, and that waiver must be clear, express, and unequivocal. That is, as a general proposition, correct. However, waiver can be established by conduct as well as by express words. The question is whether the party alleged to have waived the right has conducted itself in a manner that is inconsistent with the enforcement of that right. [89] In the present case, the Arbitrator found (based on the evidence before her) that the Plaintiff had conducted itself over a period of years in a manner wholly inconsistent with a position that the EOTs were invalid. The Plaintiff signed Variation Orders that incorporated delay events and revised programmes. The Plaintiff calculated and invoiced liquidated damages based on the revised completion dates in the EOTs. The Plaintiff never once, during the Project, asserted that the EOTs were invalid for want of notice. S/N GKqeypYBZ0eSzK4xeCkkfg [90] Whether those facts are sufficient to constitute a waiver or an estoppel is quintessentially a question of fact and degree to be determined by the tribunal in light of the whole of the evidence. The learned Arbitrator concluded that they were. Even if this Court might have been inclined to reach a different view, that would not furnish a basis for setting aside the Award under section 37 of the Act. [91] Third, the SA and Clause 8: The Plaintiff places considerable weight on Clause 8 of the SA, which provides: "In consideration of the revised Date of Sectional Completion for Section 2... no further extension of time will be given under the Original Contract in respect of any delays by the Employer in giving possession of the Site or any section of the Site up to and including 1.9.2013." [92] The Plaintiff argues that this clause operates as a complete bar to any EOT claims based on events occurring before 1.9.2013, and that the delay events relied upon for EOT Nos. 2, 3, and 4 all fall within this category. [93] However, the Arbitrator analysed Clause 8 in detail at paragraphs 172-181 of the Award. Her interpretation of Clause 8 was that it extinguished claims for EOT arising from delays by the Employer in giving possession of the site up to and including 1.9.2013, but it did not extinguish claims for other types of delay (such as late instructions, design changes, variations, etc.) that occurred or continued after that date. S/N GKqeypYBZ0eSzK4xeCkkfg [94] At paragraph 174 to 176 of the Award, the learned Arbitrator reasoned: " 174. I find that Claimant is not claiming EOT for delay events that had occurred up to 1.9.2013, Claimant is claiming EOT for delays by Respondent in giving Claimant the site possession or any section of the site after 1.9.2013 which I find justified and not in contravention of the Parties agreement in the SA.

I find that that it is very clear from the SA that the revised date of commencement is 1.9.2013, which means that the Claimant had agreed to the timeline for completion on 31.5.2015 subject to being able to commence fully on 1.9.2013.

Parties did agree to the consideration of RM5 Million in exchange of Claimant to accelerate the works and to meet the date of Completion on 31.5.2015 and in addition the Parties also agree that in consideration of the revised date of sectional completion, no further EOT will be given in respect of delays by the Employer in giving the site possession of the site or any section of the site up to and including 1.9.2013. Therefore, if there is any delay on the part of Employer (Respondent) in giving the site possession or any section of the site after 1.9.2013, the Claimant is still entitled to EOT. " [95] This was a finding concerning the proper construction of the SA. The interpretation of contractual provisions lies at the heart of the arbitral function. The learned Arbitrator was entitled to construe Clause 8, having regard to the language of the agreement, the surrounding circumstances, and the submissions advanced by the parties. Her interpretation, whether right or wrong, forms part of the S/N GKqeypYBZ0eSzK4xeCkkfg merits of the dispute entrusted to her for determination and does not, without more, constitute a basis for setting aside the Award. [96] Fourth, the alleged "continuations" or "spillover" of pre-SA delays: The Plaintiff argues that even if certain delaying events are characterised as having occurred after 1.9.2013, they are not independent new causes but merely the continuation of pre-SA delays. This argument requires the Arbitrator to engage in a detailed forensic analysis of causation - which is precisely what she did. [97] At paragraphs 183-212 of the Award, the Arbitrator examined each of the delay events relied upon for EOT Nos. 2 and 3 and paragraphs 213 to 226 in respect of EOT 4. She considered the Defendant's delay expert's analysis, the contemporaneous correspondence, the site records, and the Architect's assessments. She reached conclusions on which delays were independent post-SA events and which were not. [98] These were findings of fact reached after the learned Arbitrator considered the expert evidence alongside the contemporaneous documents and the Architect’s assessment of the EOTs. The weight to be accorded to competing evidentiary sources, and the decision to prefer one body of evidence over another, fall squarely within the arbitral function. The Plaintiff’s dissatisfaction with the learned Arbitrator’s preference for the contemporaneous records does not transmute those findings into any jurisdictional error. S/N GKqeypYBZ0eSzK4xeCkkfg [99] Fifth, the nature of the Plaintiff’s complaints: When analysed in substance, the Plaintiff’s challenge to the EOT findings amounts to assertions that the learned Arbitrator erred in:

interpreting Clause 23.1;

finding that the notice requirement had been waived;

interpreting Clause 8 of the SA;(d) characterising certain delays as post-SA independent events; and

preferring certain evidence over other evidence. [100] None of these contentions discloses a ground within Section 37 of the Act. Each complaint is, in substance, directed at the soundness of the learned Arbitrator’s reasoning and the conclusions she reached on the evidence. Put differently, they are attempts to reopen the merits of the dispute. Section 37 does not permit this Court to sit in appeal, to re-evaluate the evidence, or to substitute its own view for that of the arbitral tribunal. [101] As the Court of Appeal held in Huawei Technologies (Malaysia) Sdn Bhd v Maxbury Communications Sdn Bhd [2019] 6 CLJ 588: " [42] It is a fallacy to label the failure to accept the existence of a collateral agreement, or even an incorrect application of the law by the arbitrator, as amounting to a transgression of the arbitrator, such that it can be said that the award handed down deals with a dispute not contemplated by or not falling within the terms of submission to arbitration. Errors, such as those sought to be put forward by the applicants, even if they had merit, have no nexus with s. 37(1)(a)(iv) which deals with the issue of S/N GKqeypYBZ0eSzK4xeCkkfg jurisdiction and not errors of law. If at all they are errors of fact and/or law, they are errors committed within the scope of his jurisdiction or mandate. Indeed, to hold otherwise would result in every award being subject to review, and in effect, appeal by the courts. That is precisely what the AA 2005 seeks to preclude." [102] The learned Arbitrator was plainly entitled to determine whether the EOTs were valid. That issue lay squarely within the scope of the reference and formed part of the very dispute the parties had submitted for her determination. The mere fact that the learned Arbitrator resolved the question in a manner adverse to the Plaintiff does not, without more, signify any excess of jurisdiction. An adverse decision is not synonymous with a decision made without authority; it is simply the result of the tribunal performing the task entrusted to it. [103] Sixth, the authorities relied upon by the Plaintiff: The Plaintiff cites several authorities for propositions relating to contractual interpretation, the requirements for waiver, and the construction of conditions precedent. All these authorities may well be good law. However, the Plaintiff fails to grapple with the fundamental point that this is not an appeal. [104] The question is not whether KL Eco City(supra), Sunshine Fleet(supra), or any other case supports the Plaintiff's interpretation of Clause 23.1. The question is whether the Arbitrator's different S/N GKqeypYBZ0eSzK4xeCkkfg interpretation amounts to an excess of jurisdiction or a breach of natural justice? The answer is no. [105] The process of adjudication by the arbitrator necessarily involves the evaluation of facts, the construction of contractual language, and the application of legal norms. Reasonable minds may differ in undertaking that task, and divergence in outcome is an incident of the decision-making function. The mere fact that the determination operates unfavourably to one party does not, without more, render it unlawful or indicative of any want of jurisdiction. Section 37 of the Act does not authorise this Court to re-open the merits or to correct alleged errors of fact or law; its function is confined to policing the narrow statutory grounds for curial intervention. Conclusion on Issue (iii) [106] For all the reasons above, I reject the Plaintiff's challenge to the Award insofar as it relates to EOT Nos. 2, 3, and 4. The Arbitrator:

did not mischaracterise the law on notice requirements or waiver;

made findings of fact, based on the evidence, that the Plaintiff had waived strict compliance with Clause 23.1;

interpreted Clause 8 of the SA in a manner that was open to her on the language of the contract;

conducted a detailed forensic analysis of the delay events and their causes, and

reached conclusions that were within her jurisdiction. S/N GKqeypYBZ0eSzK4xeCkkfg [107] No excess of jurisdiction, breach of natural justice, or violation of public policy has been demonstrated. The Plaintiff's complaints are purely merits-based and fall outside the scope of Section 37of the Act. ISSUE (IV): Whether The Arbitrator Failed To Consider The Plaintiff's Entitlement To LD As Per The Contract And SA The Plaintiff's Position [108] The Plaintiff's fourth ground, as set out in its written submissions, challenges the Arbitrator's treatment of the Plaintiff's counterclaim for liquidated damages. The Plaintiff's arguments may be summarised as follows:

The Arbitrator's dismissal of the Plaintiff's LD claim was entirely contingent upon her acceptance of EOT Nos. 2, 3, and 4 - since those EOTs are invalid (for the reasons set out under Issue (iii) above), the Defendant failed to complete the works within the Revised Completion Date of 31.5.2015;

The LD ought properly to be calculated from 1.6.2015 (the day after the Revised Completion Date) until the date of completion, or alternatively as certified by the Quantity

The Plaintiff's right to claim LD is expressly provided under Clause 22.2 of the Contract, which states that the LD is a "genuine pre-estimate of loss and/or damage" and that the Plaintiff is entitled to recover it "without the need... to prove his loss and/or damage";

The Clause 21.1 of the Contract, read together with Clause 8 of the SA, makes clear that the Defendant had no contractual entitlement to any further EOT beyond 31.5.2015;

The amount of RM2,598,000.00 was derived from the Quantity Surveyor's valuation as reflected in Final Certificate No. 50, and the Arbitrator departed from this valuation without providing adequate justification;

The Arbitrator's limitation of the LD to only RM1,221,200.00 (calculated from 30.4.2016 to 14.6.2016) is erroneous and disregards both the contractual terms and the factual matrix;

The Section 75 of the Contracts Act 1950, read with Section 56(1), provides that where time is of the essence, failure to perform within the stipulated time entitles the innocent party to claim damages. The Defendant's Position [109] The Defendant's position on the LD issue, may be summarised as follows:

The LD argument is entirely derivative of the Plaintiff's challenge to EOT Nos. 2, 3, and 4 - if those EOTs are valid (as the Arbitrator found), then the Plaintiff's LD claim necessarily fails;

The Plaintiff's submission is premised entirely on the premise that the EOTs are invalid, the completion date is 31.5.2015, and LD must run from 1.6.2015 - this is simply asking the Court to substitute its own view on the LD calculation, which is precisely what Section 37 of the Act prohibits;

The correctness of the LD computation is not a Section 37 issue - the issue is not whether the Arbitrator decided the LD question "correctly", but whether she had jurisdiction to decide it and whether she considered the Plaintiff's argument;

Both elements are beyond dispute - the LD claim was squarely before the Arbitrator, and she considered it in detail;

Even the Plaintiff's criticism of the Arbitrator's departure from the QS valuation in Final Certificate No. 50 is a pure factual disagreement - the weight to be given to certificates, expert valuations, or contemporaneous documents is exclusively the Arbitrator's domain;

The LD challenge does not involve capacity, no-notice, inability to present case, excess of jurisdiction, procedural irregularity, arbitrability, or public policy - it is simply an invitation for the Court to re-determine the effect of the SA, the validity of EOTs, and the proper LD amount. Court’s Analysis and Findings [110] The Plaintiff's challenge to the Award on liquidated damages is inextricably linked to its challenge to the validity of EOT Nos. 2, 3, and 4. The logic is straightforward: if the EOTs are invalid, then the Defendant was in culpable delay from 1.6.2015 onwards, and the Plaintiff is entitled to recover LD for that period. Conversely, if the EOTs are valid (as the Arbitrator found), then the Defendant's completion on 14.6.2016 was within time (or marginally late), and the Plaintiff's entitlement to LD is correspondingly limited. S/N GKqeypYBZ0eSzK4xeCkkfg [111] The learned Arbitrator addressed the LD issue at paragraphs 265- 272 of the Award. Her analysis proceeded as follows:

First, she noted that the Plaintiff's counterclaim sought LD in the sum of RM11,238,000.00 or alternatively RM2,598,000.00, calculated on the basis that the Defendant was in delay from 1.6.2015.

Second, she found that EOT Nos. 2, 3, and 4 were valid for the reasons set out in the earlier parts of the Award. This meant that the Revised Completion Date for Section 2 was not 31.5.2015 but 30.4.2016.

Third, she found that the Certificates of Practical Completion showed that Section 2 (GL22-34) was completed on 28.4.2016 (within time) and Section 2 (remaining works) was completed on 15.6.2016 (46 days late).

Fourth, she calculated LD only for the 46-day delay (from 1.5.2016 to 15.6.2016, less weekends and public holidays), which resulted in a figure of approximately RM1,221,200.00 (at the rate of RM30,000 per day).

Fifth, she offset this LD liability against the amounts due to the Defendant under the interim certificates, resulting in a net amount payable to the Defendant. [112] The Plaintiff’s complaint is that the analysis is fundamentally flawed because it proceeds on the footing that EOT Nos. 2, 3, and 4 are valid. If, as the Plaintiff contends, they were invalid, the computation of liquidated damages would necessarily be different. S/N GKqeypYBZ0eSzK4xeCkkfg [113] However, for the reasons set out in detail under Issue (iii) above, I have concluded that the Plaintiff’s challenge to the validity of the EOTs cannot succeed. The learned Arbitrator’s findings on waiver, the interpretation of the SA, and the forensic evaluation of the delay events were matters squarely within her jurisdiction and are not susceptible to review under Section 37 of the Act. [114] It follows that the learned Arbitrator’s computation of liquidated damages, which flowed directly and logically from those findings, is likewise not open to challenge. The Plaintiff’s submission amounts, in substance, to saying that had the findings on the EOTs been different, the result on liquidated damages would also have been different. That proposition may be logically correct, but it does not demonstrate any excess of jurisdiction or breach of natural justice. [115] The Plaintiff further contends that the learned Arbitrator departed from the Quantity Surveyor’s valuation in Final Certificate No. 50 without adequate justification. The learned Arbitrator was, however, not bound by the QS’s assessment. She was required to determine, through contractual construction and factual evaluation, what sum, if any, was properly due as liquidated damages. The weight to be accorded to the certificate and the period during which the LD is to be imposed, as against the totality of the evidence, was a matter for the Arbitrator. [116] The Plaintiff’s reliance on Sections 56 and 75 of the Contracts Act 1950 does not carry the argument further. Those provisions state the governing legal principles, but they do not dictate the factual conclusions to be reached in any particular case. The learned S/N GKqeypYBZ0eSzK4xeCkkfg Arbitrator was aware of the legal framework; the task before her was to apply it to the evidence, which she did. [117] In the final analysis, the challenge to the liquidated damages determination is wholly derivative of the unsuccessful attack on the EOT findings. Once the latter fails, the former necessarily falls away. Conclusion on Issue (iv) [118] For the reasons above, I reject the Plaintiff's challenge to the Award insofar as it relates to liquidated damages. The Arbitrator's findings on LD were:

based on her prior findings on the validity of EOT Nos. 2, 3, and 4, which I have held to be within her jurisdiction;

supported by a detailed analysis of the evidence, including the Certificates of Practical Completion and the contractual provisions;

reached after considering the Plaintiff's counterclaim and the parties' respective submissions; and

no excess of jurisdiction, breach of natural justice, or violation of public policy has been demonstrated. The Plaintiff's complaints are purely merits-based. ISSUE (V): Whether The Arbitrator Failed To Consider The Plaintiff's Expert Evidence The Plaintiff's Position S/N GKqeypYBZ0eSzK4xeCkkfg [119] The Plaintiff’s fifth and final ground, as articulated in its written submissions, is that the Arbitrator breached natural justice by giving undue weight to the Architect’s EOT assessment and rejecting the Plaintiff’s expert evidence without proper justification. The Plaintiff’s case may be summarised as follows:

The Architect’s certification under Clause 23.4 of the Contract is purely administrative and cannot determine the Defendant’s entitlement to EOT once the matter is in arbitration;

The Arbitrator must independently assess whether the certification was made in compliance with the contractual provisions, whether the relevant events were proven, and whether the extension granted was fair and reasonable;

The RW-3’s Expert Report demonstrated that the Architect’s certifications were manifestly erroneous, issued in excess of authority, and made in disregard of procedural requirements and natural justice;

The Arbitrator was required to give careful consideration to RW-3’s expert evidence and to evaluate independently whether the Architect’s certifications could stand in law;

The RW-3’s report was the only technical evidence before the tribunal, and the Architect’s decisions were not supported by any independent expert analysis or tested through cross-examination;

The Defendant did not call any expert witness to rebut RW-3’s evidence, and accordingly the Plaintiff’s expert evidence remains unchallenged;

It is a well-established principle that where the opposing party fails to call independent expert evidence, the court should accept the uncontradicted expert evidence unless it is “obviously lacking in defensibility”, citing Majuikan Sdn Bhd v

The burden of proof lies on the party asserting the validity of the Architect’s EOT (i.e., the Defendant), and if the Defendant wished to rely on the Architect’s opinion, it was incumbent upon the Defendant to call the Architect as a witness or produce an independent expert;

The expert evidence carries greater probative weight than an administrative certification when technical issues such as delay, causation, and critical path are in dispute;

The Arbitrator’s reasoning that the Architect’s assessment should prevail because the Architect had “first-hand site knowledge” and RW-3 “was not present at site” constitutes a misdirection in law;

The Arbitrator’s undue reliance on an untested certification, in the face of unchallenged expert testimony, deprived the Plaintiff of a fair and lawful adjudication and constitutes a breach of natural justice under Section 37(1)(b)(ii) of the Act. The Defendant’s Position [120] The Defendant's position on this issue, as set out in its written submissions can be summarised as follows:

The Plaintiff's complaint amounts to nothing more than dissatisfaction that the Arbitrator preferred the Architect's EOT S/N GKqeypYBZ0eSzK4xeCkkfg assessment over the opinion of the Plaintiff's expert - this is a pure disagreement with evaluative conclusions, not a ground for setting aside;

The learned Arbitrator plainly considered the expert evidence. This is evident from her analysis of the parties’ respective positions at paragraphs 183–212 of the Award, where 7 pages were devoted to examining RW-3’s evidence and setting out clear and reasoned grounds for preferring the Architect’s assessment;

The Arbitrator found the Architect had first-hand, contemporaneous knowledge and had consulted with other project consultants;

Crucially, the Arbitrator found that RW-3 "lacked independence and objectivity" and had "assumed the role of an advocate" - at paragraph 196 of the Award;

Once the Arbitrator found that an expert lacks independence or has crossed into advocacy, she is entitled (indeed obliged) to reject or give diminished weight to that evidence;

The evaluation of evidence, including the weight to be given to competing testimony and the credibility of expert witnesses, is the exclusive domain of the arbitral tribunal;

The Arbitrator's preference for one body of evidence over another, after due consideration, cannot constitute a breach of natural justice;

The rule of natural justice requires a party to be heard, not for the tribunal to agree with that party;

The Plaintiff has failed to identify any procedural irregularity in how the expert evidence was considered - the complaint is simply that the Arbitrator did not accept RW-3's conclusions;

The Plaintiff cannot convert dissatisfaction with evidential findings into a setting aside application of the Award. Court’s Analysis and Findings [121] This ground raises the question whether a tribunal breaches natural justice by preferring the contemporaneous assessment of the contract administrator (the Architect) over the retrospective opinion of a party-appointed expert. In my judgment, the answer is no, provided that the tribunal has considered both sources of evidence and explained the basis for its preference. [122] I have carefully considered the parties' detailed submissions on this issue, reviewed the relevant portions of the Award, and I make the following findings. [123] First, the factual position: The learned Arbitrator devoted 7 pages of the Award (paragraphs 183-212) to the analysis of RW-3's expert evidence. She described the methodology adopted, summarised the principal conclusions, recorded the criticisms levelled against the report, and set out her reasons for preferring the Architect's assessment. This is therefore not a case in which the expert evidence was ignored or overlooked. [124] Second, the Arbitrator's findings on RW-3's independence: At paragraph 196 of the Award, the Arbitrator observed: "I also find that RW-3 as an expert had assumed the role of an advocate when she offered her opinion on other matters S/N GKqeypYBZ0eSzK4xeCkkfg pertaining to the contract interpretation and GST, all in favour of the Respondent. This gave me the impression that RW-3 lacked independence and objectivity." [125] That finding went directly to the weight to be attached to the expert evidence. It is trite that an expert owes a paramount duty to the tribunal rather than to the party who calls her. Where the tribunal concludes that the expert has descended into advocacy, it is entitled to treat the evidence with caution or to reject it. [126] The Plaintiff submits that the Defendant ought to have adduced its own expert evidence, or called the Architect, if it wished to contradict RW-3. This misses the essential point. Once the learned Arbitrator formed the view that RW-3 lacked the necessary independence, the absence of competing expert testimony did not compel acceptance of her conclusions. The learned Arbitrator was entitled — indeed obliged — to scrutinise the expert evidence and to decline to rely upon it if she found it wanting in objectivity. [127] Third, the Plaintiff’s reliance on Majuikan(supra): The Plaintiff invokes that decision for the proposition that uncontradicted expert evidence ought ordinarily to be accepted unless it is plainly indefensible. The reliance is misplaced for two reasons:

In Majuikan(supra), the court was concerned with handwriting expert evidence in circumstances where there was neither competing expert testimony nor any other evidential foundation upon which the conclusions could be doubted. The Court of Appeal held that, in such a case, the trial judge S/N GKqeypYBZ0eSzK4xeCkkfg should not have rejected the expert evidence without cogent reason.

The present case is materially different. The learned Arbitrator did not reject RW-3’s evidence without justification. On the contrary, she set out detailed reasons for doing so, including her finding that RW-3 lacked independence and objectivity. Further, she had before her the contemporaneous assessments of the Architect, which furnished an alternative evidential basis for her determination. [128] The passage from Majuikan(supra) at [35] actually supports the Defendant's position: "We are in agreement with these principles and in our view, a judge who is not an expert himself, should defer to expert opinion unless that evidence is obviously indefensible and is not supported by the basic facts of the case….. where there is only one expert opinion, he should not as a rule reject that opinion outright without judiciously considering whether it is obviously indefensible and unsupported by the basic facts of the case…." [129] The learned Arbitrator did, in fact, give careful consideration to RW- 3’s evidence. She concluded that it lacked independence, was inconsistent in material respects with the contemporaneous documentary record,and rested on assumptions that had not been established. In substance, she found the opinion to be unsupported by the primary facts of the case. That is precisely the sort of reasoned basis for non-acceptance contemplated in Majuikan (supra). S/N GKqeypYBZ0eSzK4xeCkkfg [130] Fourth, the role of the Architect’s certifications: The Plaintiff submits that such certificates are merely administrative and cannot be determinative of EOT entitlement in an arbitration. As a general proposition, that is uncontroversial: the learned Arbitrator was not bound by the Architect’s views and was required to arrive at her own independent conclusion. It does not follow, however, that the certificates were irrelevant or devoid of evidential weight. [131] The Architect’s certifications were contemporaneous records produced by a professional appointed under the Contract to administer the works. They reflected observations made at the material time, informed by the progress of the Project, engagement with the consultants, and familiarity with the programme. In those circumstances, the learned Arbitrator was entitled to regard them as probative of the nature of the delay events and their consequences. [132] By contrast, an expert retained after the completion of the works may be well placed to assist the tribunal on matters of methodology, delay analysis, and the interpretation of programme documents. However, where such retrospective opinion diverges from contemporaneous assessments made by the contract administrator, it is within the tribunal’s evaluative function to determine which evidence should be preferred. [133] Fifth, the Arbitrator's reasoning: At paragraphs 201-208 of the Award, the Arbitrator explained in detail why she preferred the Architect's assessment to RW-3's opinion:

The Architect had first-hand, contemporaneous knowledge of the Project;

The Architect had consulted with the structural engineer, the M&E consultant, and the quantity surveyor in preparing the EOT assessments;

The Architect's assessments were based on detailed site records, progress reports, and correspondence;

RW-3's analysis was based on incomplete information and rested on assumptions that had not been proven;

RW-3's conclusions on certain delay events were contradicted by the contemporaneous correspondence;

RW-3 had not been cross-examined on several key aspects of her methodology. [134] These were all legitimate bases upon which the learned Arbitrator could prefer one body of evidence over another. The Plaintiff may disagree with that evaluative assessment, but such disagreement does not convert it into any form of jurisdictional error. [135] Sixth, the burden of proof argument: The Plaintiff contends that the burden of proof rested on the Defendant to establish the validity of the EOTs and that the Defendant ought therefore to have called the Architect or an independent expert. This submission, however, proceeds on a misunderstanding of how the burden of proof operates in arbitration. [136] The Defendant’s case was that the Architect had issued valid EOT certifications in accordance with the Contract, and those certifications were placed before the learned Arbitrator. The Plaintiff, S/N GKqeypYBZ0eSzK4xeCkkfg in turn, sought to undermine their reliability through the evidence of RW-3. In those circumstances, it was for the Plaintiff to satisfy the learned Arbitrator that the certifications should not be accepted. The learned Arbitrator concluded that this had not been done, having found, among other matters, that RW-3’s opinion lacked independence and was inconsistent with other evidence before her. [137] In those circumstances, the Defendant was under no obligation to call the Architect or to adduce competing expert evidence. It was entitled to rely on the contemporaneous certifications and to contend that they ought to be preferred to RW-3’s retrospective analysis. [138] Seventh, natural justice: The Plaintiff’s ultimate submission is that the learned Arbitrator’s approach amounted to a breach of natural justice. For such a breach to arise in the evaluation of evidence, however, it is insufficient merely to show that the tribunal preferred one body of evidence over another. Something more in the nature of procedural unfairness must be demonstrated — for example, that the tribunal relied on material which the parties had no opportunity to address, or that a party was denied a reasonable opportunity to present its case. [139] No such procedural unfairness has been shown. The Plaintiff was afforded every opportunity to adduce RW-3’s evidence, to test the reliability of the Architect’s certifications through cross-examination, and to advance submissions on the weight to be given to the competing material. The learned Arbitrator considered that body of evidence and arrived at her determination. The Plaintiff’s S/N GKqeypYBZ0eSzK4xeCkkfg dissatisfaction with the outcome does not constitute a breach of natural justice. [140] As noted in the section on the applicable legal principles, the requirements of natural justice are met when a party is given a fair opportunity to be heard; they do not extend to securing that party’s acceptance by the tribunal. Both parties were fully heard on the expert evidence issue. The learned Arbitrator provided reasons for the conclusion she reached. In those circumstances, the demands of natural justice were satisfied. [141] Eight, the Plaintiff's reliance on authorities concerning unopposed expert evidence: Those cases are invoked for the proposition that such evidence should ordinarily be accepted. Properly understood, however, they concern situations in which the expert in question was independent and there existed no other evidential basis upon which the opinion could reasonably be doubted. [142] Neither feature is present here. The learned Arbitrator found that RW-3’s evidence lacked independence. Further, she had before her other material—including the Architect’s certifications and the contemporaneous project records — which was inconsistent with aspects of RW-3’s analysis. In those circumstances, the authorities on unopposed expert evidence are of no assistance to the Plaintiff. Conclusion on Issue (v) [143] For all the reasons set out above, I reject the Plaintiff’s challenge to S/N GKqeypYBZ0eSzK4xeCkkfg the Award in relation to the treatment of the expert evidence. The learned Arbitrator:

gave detailed consideration to RW-3’s opinion;

made a reasoned finding that RW-3 lacked the requisite independence and objectivity;

explained why she preferred the Architect’s contemporaneous assessments and the project records; and

reached conclusions that were plainly open to her on the material before the tribunal. [144] In these circumstances, no breach of natural justice, excess of jurisdiction, or conflict with public policy has been established. What is advanced by the Plaintiff is, once again, no more than a disagreement with the learned Arbitrator’s evaluation of the evidence and the conclusions that flowed from it. Such complaints go to the merits of the decision and fall outside the limited scope of intervention permitted under Section 37 of the Act. G. CONCLUSION ON BREACH OF NATURAL JUSTICE AND PUBLIC POLICY [145] Having addressed each of the Plaintiff's five specific grounds for setting aside, I now turn to consider whether, taking the Plaintiff's case at its highest, any breach of natural justice or public policy has been established. Breach of Natural Justice S/N GKqeypYBZ0eSzK4xeCkkfg [146] The Plaintiff has failed to demonstrate a breach of natural justice under Section 37(1)(b)(ii) and Section 37(2)(b) of the Act. The record shows comprehensively that both parties were given a full and fair opportunity to present their cases over the course of the arbitration proceedings. [147] The Award itself is detailed, running to slightly over 300 paragraphs. It is meticulously reasoned and engages directly with the parties' submissions on every material issue. The Arbitrator:

set out the parties' respective cases;

identified the issues for determination;

summarised the evidence, including witness testimony, expert evidence, and contemporaneous documents;

analysed the applicable contractual provisions and legal principles;

made findings of fact;

reached conclusions on each issue;

explained her reasons. [148] In my view, this represents a careful and fully reasoned arbitral award. The rejection of a party’s arguments after due consideration does not constitute a breach of natural justice; it is the ordinary function of adjudication. As Justice Aliza binti Sulaiman observed in Propel Synergy Sdn Bhd v Vistasik Sdn Bhd [2022] MLJU 824 at [178] (affirmed by the Court of Appeal): "PSSB is essentially unhappy with the Arbitrator's assessment of the evidence and his findings of facts and/or of law. This S/N GKqeypYBZ0eSzK4xeCkkfg unhappiness was transformed into an accusation that the Arbitrator did not make an objective determination of the issues that he has to resolve." [149] The same observation applies with equal force to the present case. The Plaintiff is dissatisfied with the learned Arbitrator’s findings, and that dissatisfaction has been framed in the language of “failure to consider”, “erroneous interpretation”, “fundamental legal error”, and “breach of natural justice”. When analysed, however, those complaints reduce to no more than disagreements with the merits of the decision. Public Policy [150] Similarly, none of the Arbitrator’s findings can be said to be so manifestly unjust or unconscionable as to offend Malaysian public policy. The Arbitrator applied the express terms of the contract, gave effect to the dispute resolution mechanism chosen by the parties, and reached conclusions grounded on the evidence before her. [151] The fact that the Plaintiff disagrees with the outcome, or contends that a different interpretation of the contract would have been preferable or more just, does not engage public policy within the meaning of section 37(2)(b)(ii) of the Act. As the Federal Court held in Pancaran Prima (supra): S/N GKqeypYBZ0eSzK4xeCkkfg "Public policy should be given a narrow meaning and should not be used as a vehicle to re-examine the merits of an arbitral award." [152] The Plaintiff has not identified any feature of the Award that shocks the conscience or violates the most basic notions of morality and justice. The Award is the product of a fair arbitral process, it applies established contractual and legal principles, and it reaches conclusions that were plainly open to the Arbitrator on the material before her. It therefore falls well within the limits permitted by public policy. H. FINALITY OF ARBITRATION [153] It is appropriate to conclude this analysis by recalling the fundamental importance of finality in arbitration. [154] The parties elected arbitration as their chosen method of dispute resolution. In Clause 34.11 of the Contract, they agreed that the arbitrator’s award would be “final and binding”. By that agreement, they voluntarily surrendered any right to an appeal on the merits and accepted that the arbitrator’s determination — whether palatable to them or otherwise — would bring the dispute to an end. [155] The statutory framework both reflects and reinforces that consensual bargain. Section 37 of the Act provides only limited and exceptional grounds upon which an award may be set aside. It does S/N GKqeypYBZ0eSzK4xeCkkfg not permit the court to reopen or re-evaluate the merits of the arbitral decision. [156] As the High Court observed in Tune Group(supra) at [22]-[23] and reiterated here: "The Court …... not be carried away by the applicants' resort to convoluted or fanciful arguments and interpretation of the facts, evidence and law which at any rate are not within the province of the court ………." [157] The present case illustrates precisely the type of challenge that a court exercising jurisdiction under Section 37 must be astute to resist. Each of the Plaintiff’s grounds, once stripped of legal labels, reduces to a complaint that the Arbitrator was wrong in her evaluation of the facts or the contract. Even if that were so — and I do not find that it is — an error on the merits is not a ground for curial intervention. [158] The Defendant has been awaiting payment for works completed in 2016, nearly nine years ago. The parties engaged in a protracted arbitration which itself spanned some six years. The Arbitrator ultimately produced a detailed and carefully reasoned Award dealing with the issues advanced by both sides. It is not open to the Plaintiff, at this late stage, to attempt to dismantle that Award merely because the result is unfavourable to it. [159] The public interest in upholding the finality and enforceability of S/N GKqeypYBZ0eSzK4xeCkkfg arbitral awards requires that an application of this nature — which is, in substance, an appeal on the merits — must be rejected. I. ENFORCEMENT OF FINAL AWARD-OS32 [160] Given my due consideration of OS 30 and my grounds above on the same, I hold that the Award is to be recognised and binding and to be enforced as a judgment. [161] The Defendant has complied with the formal requirements of Section 38 of the Act by producing the duly certified Final Award and the underlying arbitration agreement in the said Contract. [162] As held by the Federal Court in Siemens Industry Software GmbH & Co Kg (Germany) v Jacob and Toralf Consulting Sdn Bhd [2020] 3 MLJ 1, once the formal requirements of Section 38 of the Act are met, the registration and enforcement of an award should be granted as of right. The Court held: “[53] We agreed with the appellant that in deciding as it did, the Court of Appeal erred in failing to distinguish the role of a court of enforcement and a court of merits. As found by the Court of Appeal having complied with the formal requirements of s 38 of AA 2005, the registration of the award under s 38 is granted as of right. Subject to s 39 of the AA 2005, in dealing with an application under s 38, a court is thus not required to go behind the award and to understand the arbitral tribunal’s reasoning. Hence, the Court of Appeal’s conclusion that there was merit in the argument of the respondents that if only the dispositive part S/N GKqeypYBZ0eSzK4xeCkkfg of the award is registered, the court tasked with enforcement will be deprived of the advantage of understanding the arbitral tribunal’s reasoning, is with respect, misconceived.” [163] The Plaintiff has not invoked any of the limited grounds for refusal of enforcement under Section 39 of the Act. Their attempt to resist enforcement is intrinsically linked to their failed application to set aside the Award in OS 30. Since the setting aside application has been dismissed, there is no valid legal barrier to enforcement. [164] The Final Award is final and binding, and the Defendant is entitled to reap the fruits of its successful arbitration. [165] For the reasons stated above: a) Plaintiff 's Setting Aside Application (Enclosure 1 in OS 30) to set aside the Award is dismissed with costs of RM20,000.00 subject to allocatur fees, b) The Defendant’s Enforcement Application (Enclosure 1 in OS 32) to enforce the Award is allowed with costs of RM10,000.00 subject to allocatur fees. The Award is to be registered as a judgment of the High Court pursuant to Section 38 of the Arbitration Act 2005. Dated 24th November 2025 sgd RAJES RAGHAVJI JUDICIAL COMMISSIONER HIGH COURT CONSTRUCTION COURT 1 KUALA LUMPUR S/N GKqeypYBZ0eSzK4xeCkkfg COUNSEL FOR THE PLAINTIFF (OS30)/DEFENDANT(OS32): Hasnan Hamzah and Tunku Ahmad Munawwir bin Tunku Ahmad Mustaffa (Messrs Hasnan Hamzah) COUNSEL FOR THE DEFENDANT(OS30)/PLAINTIFF(OS32): Yap Chean Hong (Messrs Azmi & Associates)