Jet Gombak Sdn Bhd & 1 Lagi v Provista Ventures Sdn Bhd (WA-24NCC(ARB)-28-06/2017)

Content

1 5 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) SAMAN PEMULA NO: WA-24NCC(ARB)-28-06/2017 Dalam Perkara Seksyen 42 Akta 10 Timbang Tara 2005 Dan Dalam Perkara Timbang Tara 15 antara Jet Gombak Sdn Bhd & Jet Melati Sdn Bhd dan Provista Ventures Sdn Bhd Dan 20 Dalam Perkara Award Muktamad yang diterbitkan oleh Su Tiang Joo pada 16/05/2017 25

Schedule

Schedule 2 of the Forecourt Agreement. It was provided in the Forecourt Agreement that the “variable licence fee” would be waived for both gasoline and diesel for the duration of the agreement. (e) After the Shell group of companies took over ProJET, steps were taken to replace the ProJET petrol stations as Shell petrol stations. The 25 respective Forecourt Agreement with the Applicants were terminated by the Respondent with effect from 19/7/2007 via letters dated 7/9/2007 issued by the Respondent and acknowledged by the Applicants. (f) Following the termination, the remaining credit balances available 30 in the Applicants’ accounts with ProJET were reimbursed to the Applicants. In the letter sent to each of the Applicants, it was acknowledged and agreed by the respective Applicants that “with this 5 settlement, all outstanding payments due from ProJET to your 5 company (the respective Applicants) have been settled in full and that your company (the respective Applicants) has no further claims against ProJET for the reimbursement of the credit balance of their account”. (g) In 2013, the Applicants commenced arbitration proceedings against the Respondent via their notices of arbitration dated 2/7/2013. 10 [5] In the Applicants’ Statement of Claim dated 29/1/2006 (amended on 20/1/2017), the Applicants had pleaded the following - (a) By a letter dated 20/4/2009, the Respondent through Shell Malaysia Trading Sdn Bhd demanded that the Applicants pay to the 15 Respondent the respective sums of RM140,373.14 and RM234,013.93 being the sum allegedly due to the Respondent from the Applicants in respect of payment pertaining to Variable Licence Fee (para 16 of the Statement of Claim); (b) By a letter dated 28/4/2009, the Applicants through their solicitors 20 had paid the respective sums of RM140,373.14 and RM234,013.93 under protest on the ground that the sums were not payable as the Respondent was bound by the Forecourt Agreement dated 1/4/2006. The Applicants further explained that the said sums were waived under

Schedule

Schedule 2B of the Forecourt Agreement dated 1/4/2006 (para 17 of 25 the Statement of Claim); (c) By a letter dated 10/7/2009, the Respondent through Shell Malaysia Trading Sdn Bhd informed the Applicants that it did not agree with the contents of the Applicant’s letter dated 28/4/2009 (para 18 of the Statement of Claim); 30 (d) By the year 2011 the Respondent had charged the Applicants the respective sums of RM384,631.07 and RM876,329.82 as operating 6 licence fee for the years 2007-2011 (para 19 of the Statement of 5 Claim); (e) The Applicants stated that the Respondent had no contractual rights to charge the respective sums of RM384,631.07 and RM876,329.82 as stipulated under Schedule 2B of the Forecourt Agreement dated 1/4/2006 (para 20 of the Statement of Claim); 10 (f) Wherefore, the Applicants claimed against the Respondent the respective sums of RM384,631.07 and RM876,329.82 (amended on 20/1/2017 to be RM341,039.40 and RM685,504.35) with interest thereon and costs. 15 [6] While the Respondent took the position that there was only one issue to be determined by the arbitral tribunal and that was whether there was a sum of money as the Applicants alleged in the Statement of Claim that was due and payable by the Respondent under the Forecourt Agreement, the Applicants had set out their points of issues 20 as follows: “(a) Whether the termination of the Forecourt Agreement dated 1/4/2006 on 7/9/2007 by the Respondent was good in law; (b) Whether Shell Malaysia Trading Sdn Bhd was correct in law in 25 offering the Shell RELA to the Applicant on 10/7/2007 given that the Forecourt Agreement was still subsisting; (c) Whether the Shell RELA is good in law; 30 (d) Whether the Shell RELA is subject to the Forecourt Agreement; (e) The status of Shell Malaysia Trading Sdn Bhd when offering the Shell RELA to the Applicant on 10/7/2007; 35 (f) Whether by accepting the Shell RELA on 13/7/2007, the Applicant surrendered all its rights and benefits in the Forecourt Agreement; (g) Whether the letter dated 14/9/2007 from the Respondent to the Applicant was in respect of all the liabilities of the Respondent to the 40 Applicant; 7 5 (h) Whether the Applicant was liable to pay the disputed sum as claimed to Shell Malaysia Trading Sdn Bhd”. [7] It was the Respondent’s position, amongst others, that - 10 (a) The dispute in question in the arbitration proceedings was based on the Forecourt Agreement and therefore only disputes pertaining to the Forecourt Agreement and the parties to the Forecourt Agreement could be decided in the arbitration. The Applicants had made reference to a Shell RELA, which is not within the ambit of the arbitration 15 proceedings; and (b) It was not the Applicants’ pleaded case in their Statement of Claim that they wished to lift the corporate veil and there were no grounds set out in the Statement of Claim as to why the corporate veil had to be lifted. 20 [8] On 16/5/2017, the learned Arbitrator Mr. Su Tiang Joo (‘learned Arbitrator’) issued its Award, dismissing the Applicants’ claim against the Respondent. 25 [9] Having considered the Submissions of the parties on the Preliminary Objections, for the reasons set out below, I had allowed the Preliminary Objection of the Respondent which is a threshold issue and dismissed the Preliminary Objection of the Applicants. On this ground alone the Applicants’ Originating Summons was dismissed with costs 30 of RM6,000.00 (subject to 4% allocatur) to be jointly and severally paid by the Applicants to the Respondent. 35 8 5 Findings Preliminary Objection of the Applicants [10] In support of the Applicants’ s.42 Challenge, the Applicants filed 10 2 Affidavits: (i) the Applicants’ Supporting Affidavit and (ii) the Applicants’ Affidavit in Reply affirmed by Nordin bin Ismail on 19/7/2017 and 8/9/2017 respectively. [11] In opposing the Applicants’ s.42 Challenge, the Respondent filed 15 3 Affidavits, 2 affidavits affirmed by Azlan Yaakub, namely, (i) the Respondent’s Affidavit in Reply(1) and (ii) Respondent’s Affidavit in Reply(2) on 16/8/2017 and 21/9/2017 respectively (‘the Respondent’s Impugned Affidavits’). The 3rd Affidavit is the Respondent’s Affidavit (3) affirmed by Ong Doen Xian on 21/9/2017. 20 [12] The Applicants canvassed its Preliminary Objection primarily against the Respondent’s Affidavit in Reply(1) affirmed by Azlan Yaakub on 16/8/2017 and by submission, it also raised objection against the Respondent’s Affidavit in Reply(2) (para 7 of the Applicants’ 25 Written Submission). The Applicants contended that the Respondent could not rely on the Respondent’s Impugned Affidavits as Azlan Yaakub has no authority to affirm the same as he was the former attorney of the Respondent and since the Respondent was a company a “surat kuasa wakil” or a document authorising Azlan Yaakub to affirm 30 the Respondent’s Impugned Affidavits on behalf of the Respondent was required. The Applicants relied on - 9 (a) S.3(1)(a)(vii) of the Powers of Attorney Act 1949 (Revised 1990) 5 (Act 424) (‘Powers of Attorney Act’) which, amongst others, reads as - “(1) No instrument purporting to create a power of attorney executed after the commencement of this Act shall have any validity to create such power within Peninsular Malaysia unless- 10 (a) if executed within Peninsular Malaysia, the instrument is executed before, and is authenticated in the appropriate form set out in the First Schedule hereto by- 15 (i) … (ii) … (iii) … (iv) … (v) … 20 (vi) …; or (vii) an officer, acting in the course of his employment, of a company carrying on the business of banking in Peninsular Malaysia and incorporated by or under any written law in 25 force in Peninsular Malaysia.”; and (b) s.67 of the Companies Act 2016 (‘CA 2016’) which reads - “(1) A document is validly executed by a company as a deed if- 30 (a) it is duly executed by the company; and (b) it is delivered as a deed. (2) For the purposes of paragraph (1)(b), a document is presumed to be 35 delivered upon it being validly executed under subsection (1), unless a contrary intention is proved. (3) Notwithstanding subsection (1), a company may, by instrument executed as a deed, empower a person, either generally or in respect of 40 specified matters, to execute deeds or other documents on its behalf. (4) A deed or other document executed by the person referred to in subsection (3) shall have effect as if the deed or document is executed by the company”. 45 (Emphasis added) 10 [13] With respect in my judgment, the Applicants’ contention is without 5 merit and the Applicants’ reliance on both the provisions of law is misplaced. (a) Firstly, the Powers of Attorney Act governs how a power of attorney is created and is therefore not an instrument which is relevant in this present case as here the impugned document is an affidavit. 10 (b) Secondly, s.67 CA 2016 provides for the execution of deeds and not for the affirmation of an affidavit. Neither does the provision state that authority has to be shown by the deponent when he affirms an affidavit on behalf of a company. 15 [14] The Applicants sought to argue that s.67(3) and (4) CA 2016 assisted them in this manner: “”Affidavit” – adalah sebahagian, “other documents” bagi pihak Syarikat. Subsection 4 (reads) 20 Sekiranya ta’ada surat kuasa wakil yang membenarkan deponen mengikrar Afidavit bagi pihak Syarikat, Afidavit yang difailkan oleh deponen ta’ boleh diambil kira. Malahan, deponen adalah bekas pekerja Responden”. 25 (Emphasis added) [15] With respect I find there is no merit in the aforesaid argument of the Applicants as s.67 CA 2016 does not assist the Applicants for the following reasons: 30 (a) S.67(3) has to be read with s.67(4) CA 2016 by virtue of the phrase “executed by the person referred in subsection (3)” found in subsection(4) as follows: “A deed or other document executed by the person referred to in subsection (3) shall have effect as if the deed or document is executed by 35 the company.” 11 (b) Then by virtue of the preceding words in s.67(3) “a company 5 may, by instrument executed as a deed”, there is in my view the prerequisite that in order for a document to have effect as if the document is executed by the company within the meaning of s.67(4), the company has to first by an instrument executed as a deed empower the person referred in subsection (4) to execute other 10 documents on its behalf. [16] I find the Respondent’s Impugned Affidavits as affirmed by Azlan Yaakub are admissible on these grounds: (i) In Syarikat Ying Mui Sdn Bhd v Muthusamy a/l Sellapan and 15 other appeals [1999] 6 MLJ 622, on appeal to the High Court, the appellant, amongst others, argued the affidavit of Mr. Satchi’s (former Cameron Highlands magistrate) should be excluded from the proceedings as he was not the respondent and neither did he state in his affidavit that he had been authorised by the respondents to affirm 20 an affidavit on their behalf. Clement Skinner JC (as he then was) held at p.623 - “Order 41 of the Rules of the High Court 1980 ('the RHC') deals specifically with affidavits filed for use in any cause or matter and is silent on any requirement that a deponent must be authorized to swear an affidavit. 25 Authority is not a prerequisite to swearing an affidavit (see pp 630H- 631A)”. (ii) I agreed with the view expressed by His Lordship in Syarikat Ying Mui (supra); therefore based on O.41 ROC 2012 (which is in pari 30 materia with O.41 RHC 1980), there is no requirement for Azlan Yaakub to show that he is authorised to swear the affidavit and therefore no supporting document is thereby needed. The matter before me stands on firmer ground in that Azlan Yaakub has gone 12 further and has averred in the Respondent’s Impugned Affidavits the 5 following averment: “I am a Senior Auditor of the Audit Lubes and Retail Department of Shell People Services Asia Sdn Bhd. I was the Attorney of the Respondent in the year 2007 and I am duly authorised by the Respondent to affirm this affidavit on its behalf”. 10 (iii) In addition in response to the Applicant’s challenge to his authority, Azlan Yaakub has given justification as to why he has affirmed the Respondent’s Impugned Affidavits (particularly Respondent’s Affidavit in Reply (1)) because - 15 “(a) The allegations raised by the Applicants in the arbitration proceedings in question pertained to the period during which I was the Respondent’s attorney. I therefore have personal knowledge of the disputes or issues raised by the Applicants in the arbitration proceedings in question that had resulted in the Arbitration Award, 20 which the Applicants seek to challenge before this [Court] via their Section 42 Challenge. (b) I was also the Respondent’s only witness in the arbitration proceedings in question and the Applicants had never challenged or 25 questioned my authority to appear for the Respondent”. Preliminary Objection of the Respondent [17] I ruled the Preliminary Objection of the Respondent ought to be upheld as the Applicants’ s.42 Challenge was filed out of the 30 mandatory time limit permitted under s.42 AA 2005 and O.69 rr.4 and 6 ROC 2012 for the following reasons submitted by the Respondent. [18] S.42(2) AA 2005 provides - “42. Reference on questions of law. 35 (2) A reference shall be filed within forty-two days of the publication and receipt of the award, and shall identify the question of law to be determined and state the grounds on which the reference is sought”. 40 13 [19] Pursuant to s.42(2) AA 2005, a reference shall be filed within 42 5 days of the publication and receipt of the award, and shall identify the question of law to be determined and state the grounds on which the reference is sought. [20] O.69 rr.4 and 6 of ROC 2012 requires - 10 (a) A reference under s.42 AA 2005 is to be filed in Court within 42 days of the publication and receipt of the award; (b) Such reference to be filed by way of an originating summons and supporting affidavit; (c) The applicant to file by affidavit written evidence on which he 15 intends to rely when he files the Originating Summons – that is, the supporting affidavit has to be filed at the same time with the originating summons; (d) The originating summons and affidavit shall be served on the arbitrator and the respondent. 20 [21] The learned Arbitrator had issued its Award on 16/5/2017. The Kuala Lumpur Regional Centre for Arbitration (‘KLRCA’) had informed parties that the Award was ready for collection on 18/5/2017. The Applicants had 42 days from 18/5/2017 to file and serve its application 25 and supporting affidavit on the arbitrator and the Respondent, by 29/6/2017. [22] However, only the Originating Summons dated 22/6/2017 was filed within the 42 days period. The Applicants’ Affidavit was affirmed 30 on 19/7/2017 after the 42 days requirement specified in s.42 AA 2005 and O.69 rr.4 and 6 ROC 2012. 14 [23] The Originating Summons and the Applicants’ Affidavit were only 5 served on the Respondent on 21/7/2017, 64 days after the publication and receipt of the Award, which is contrary to AA 2005 and the ROC 2012. [24] The position taken above is supported by the following 2 cases, 10 the decisions of which I agreed, namely - (a) Kluang Health Care Sdn Bhd v. Lee Yong Beng & Another Case [2016] 1 CLJ 281 where the applicant filed an application to set aside the arbitrator’s award pursuant to s.37 and 42 AA 2005. The respondent objected to the applicant’s application on the ground of 15 delay; and argued that s.42 requires the applicant to refer the relevant questions of law within 42 days from the date of publication or receipt of the award (and not after 47 days as happened in the case). Counsel for the applicant accepted that its application was filed out of time and hence applied for extension of time to file the application. At 297[47] 20 and [50] Mary Lim J (now JCA) held - “[47] In this regard, the court must decline. The court is of the view that there is no jurisdiction to extend time given the mandatory language in sub-s. 42(2) and the constraints in s. 8 of the Arbitration Act. The recent Federal Court’s decision of Ajwa for Food Industries Co (MIGOP), Egypt v. Pacific 25 Inter-Link Sdn Bhd (supra) and the Court of Appeal’s decision in International Bulk Carriers SPA v. CTI Group Inc [2014] 8 CLJ 854; [2014] 6 MLJ 851 highlight the mandatory language of the Arbitration Act 2005 and the need for strict compliance to its provisions; and that the court’s intervention should be slow when considering whether to 30 exercise its discretion to intervene to set aside an arbitration award. There are no provisions within either s. 42 or anywhere in the Arbitration Act 2005 for the court to consider such an application. With the reminder in s. 8, the court is disinclined to say that it has jurisdiction to extend time. 35 … [50] This means that the application pursuant to s. 42 must therefore fail from the start or at the outset”. 40 (Emphasis added) 15 5 [25] Likewise in Zenbay Sdn Bhd v. Yong Choo Kui Shipyard Sdn Bhd [2015] 10 CLJ 924, Wong Kian Kheong JC at 975[62] held that the originating summons should be dismissed with costs on the sole ground that there was non-complaince with the mandatory time period under s.42 AA 2005 and O.69 r.6(1) ROC 2012. 10 [26] For the reasons given above I made the Order as per para 9 above. Order accordingly. Dated: 21/4/2018 15 SGD. (LAU BEE LAN) Judge 20 Counsel for the Applicants: Encik Noor Amirul Nazreen bin Anas together with Encik Ammar Ghalip 25 Messrs Amin-Tan & Co. Advocates & Solicitors No.11, 11-1 & 11-2, Jalan Pantai Murni 6 59200 Kuala Lumpur 30 Counsel for the Respondent: Cik Janet Chai together with Cik Annabel Tan Messrs Chooi & Company 35 Advocates & Solicitors Level 5, Menara BRDB 285, Jalan Maarof Bukit Bandaraya 59000 Kuala Lumpur 40