Lebas Technologies Sdn Bhd v Malaysian Bio-Excell Sdn Bhd (WA-24C(ARB)-46-09/2017 (Enclosure 1))

The Plaintiff’s application in the Originating Summons herein (Enclosure 1) is for an order to enforce an arbitration award styled as a “Final Award” dated 2nd February 2015, pursuant to section 38 of the Arbitration Act 2005.

This was the award of an arbitral tribunal comprising Messrs Vinayak P Pradhan, Alan J Thambiayah and Tan Sri Dato’ Abdul Aziz bin Mohamad in an arbitration in respect of a dispute between the parties, wherein the Plaintiff was the claimant and the Defendant was the respondent. 2

In this Originating Summons an application was filed by the Respondent vide a Notice of Application dated 6th December 2017 (Enclosure 9) to stay the hearing of Enclosure 1 pending the hearing and disposal of an intended arbitration between the parties. Given the prayers sought, Enclosure 9 was heard before Enclosure 1. Enclosure 9 was dismissed on 25th June 2018. Thereafter, Enclosure 1 was heard.

In relation to Enclosure 1, counsel for the Plaintiff submitted that the papers were in order, that is to say, the requirements under section 38(2) of the Arbitration Act 2005 and those under Order 69 Rule 8 of the Rules of Court 2012 had been complied with. The Plaintiff further submitted that based on the decision in Alami Vegetable Oil Products Sdn Bhd v Hafeez Iqbal Oil & Ghee Industries (PVT) Ltd [2016] 7 CLJ 19, section 38 of the Arbitration Act 2005 is a procedural provision to seek recognition of an arbitration award. As long as the procedures set out are complied with, the award must be recognised.

As to this application, the Defendant contended that the Court may adjourn its decision in relation to Enclosure 1 under section 39(2) of the Arbitration Act 2005. The power to adjourn the Court’s decision under section 39(2) of the Arbitration Act 2005 is conditional upon there being an application under section 39(1)(a)(vii). However, contrary to the Defendant’s contention, there is no application made under section 39(1)(a)(vii). It was also a finding of this Court under Enclosure 9 that it cannot be maintained that the Final Award in this case had yet to become binding, as is the requirement under section 39(1)(a)(viii), and the reasons therefore are provided in the grounds of judgment of this Court for Enclosure 9. 3

Learned counsel for the Defendant pointed out that prayer 1(c) of Enclosure 1 should be amended to read as RM290,374.92 because part of the costs awarded which amounted to RM601,850.00 had been paid. This was confirmed by learned counsel for the Plaintiff.

Having regard to the fact that the requirements under section 38 of the Arbitration Act had been complied with and there being no other objections raised by the Respondent, order in terms of Enclosure 1 was granted subject to the cost of the arbitration prayed for amounting to RM601,850.00 being amended to RM290,374.92. Costs of RM5,000.00 was awarded to the Plaintiff. Dated this 25th day of June 2018. -sgd- (YA TUAN DARRYL GOON SIEW CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur (Civil NCvC 2)