Mohd Zamri Bin Mohd Nor (Berniaga Sebagai Naza Global Trade & Services) (No. Pendaftaran: 202203259837 (003438973-K)) v 1. ) Tenaga Nasional Berhad (WA-24NCvC-4475-11/2024)

TENAGA NASIONAL BERHAD

SURUHANJAYA SYARIKAT MALAYSIA …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 23 – Plaintiff’s Application for Consequential Order / Liberty to Apply)

This is the Plaintiff’s application under Order 92 rule 4 of the Rules of Court 2012 (“ROC 2012”) seeking consequential directions following this Court’s earlier decision dated 16 April 2025, in which the Court declared that the arbitration between the parties may be revived and continued after it was prematurely terminated.

The present application became necessary because the appointed arbitrator refused to proceed with the arbitration. Her refusal was communicated by email, stating that she considered herself functus officio and unable to act further despite this Court’s ruling.

The core question is whether the arbitrator’s refusal can override a binding judicial determination. The answer, as set out below, is clearly in the negative.

On 16 April 2025, this Court found that the arbitration had been terminated on the basis of a technical irregularity, namely, an incorrect business registration number of the Plaintiff.

The Court held that:

the Plaintiff’s legal identity remained unchanged;

the arbitration agreement remained valid and binding, and

the termination was not a final award and therefore not conclusive.

This Court therefore declared that the arbitration was capable of revival and continuation.

Following that ruling, both parties attempted to resume the arbitration. However, the arbitrator declined to act, asserting she lacked jurisdiction to continue.

The issues before the Court are:

Whether this Court is functus officio in relation to its earlier decision;

Whether the Court may invoke Order 92 rule 4 ROC 2012 to make consequential directions;

Whether such directions are necessary to ensure compliance with the Court’s judgment; and

Whether the arbitrator’s refusal has any legal basis. D. PARTIES’ SUBMISSIONS

The Plaintiff submits that Order 92 rule 4 preserves the Court’s inherent jurisdiction to issue consequential orders to ensure implementation of its decision.

The arbitrator’s refusal amounts to frustration of a judicial determination, and unless the Court intervenes, its order of 16 April 2025 would be rendered ineffective.

The Defendant submits that the Court is functus officio and cannot direct an arbitrator to act.

It argues that such directions would impermissibly interfere with arbitral autonomy under the Arbitration Act 2005.

The Court is not functus officio

The liberty-to-apply doctrine permits a court to clarify and implement its orders without reopening the merits. The Federal Court in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237 confirms that Courts retain residual jurisdiction to “work out” the implementation of their judgments and prevent them from being rendered nugatory.

In that case the Federal Court found that the high court had been correct in exercising its inherent jurisdiction under Order 92, Rule 4 in granting the consequential order to give effect to the original order which Stone World had refused to comply with.

In our present case, the application does not invite the Court to revisit its findings. It merely seeks to ensure effective implementation.

Arbitrator’s refusal has no legal basis

The arbitrator’s refusal stems from a misapprehension that she was functus officio. This Court finds that the view is legally incorrect because:

This Court has already ruled that the termination order was not a final award and did not extinguish jurisdiction.

An arbitrator cannot unilaterally override a High Court determination on a point of law or jurisdiction.

Her refusal, if unaddressed, would effectively nullify a binding court order.

The arbitrator’s role is to give effect to the arbitration agreement as clarified by this Court. When an arbitrator refuses to proceed contrary to a judicial ruling, the Court must intervene to protect its own jurisdiction and ensure compliance.

No conflict with the Arbitration Act 2005

The Court is not directing the arbitrator on how to decide any issue. It is merely requiring the arbitrator to continue the process, consistent with the Arbitration Act and the parties’ agreement.

Ensuring continuation of the arbitration is entirely consistent with sections 8 and 10 of the Act, which promote minimal judicial intervention but allow the Court to resolve questions of jurisdiction.

Necessity of consequential orders

Without further directions, the Court’s earlier judgment would be defeated by administrative reluctance.

Order 92 rule 4 is precisely designed for such situations.

For the reasons above, the Court grants the Plaintiff’s application.

The following orders are made:

All steps taken by the parties following this Court’s decision dated 16 April 2025 are declared valid and endorsed.

The arbitration shall resume forthwith, before the same arbitrator or a substitute as agreed by the parties, in accordance with the Arbitration Act 2005 and the arbitration agreement.

The arbitrator and the 1st Defendant shall comply with this Order and give effect to the Court’s decision of 16 April 2025.

No order as to cause. G. CONCLUSION

The Court believes that the arbitrator’s refusal to proceed was premised on a misunderstanding of her jurisdiction and, if left uncorrected, would have undermined the authority and effect of this Court’s judgment.

The Court accordingly exercises its inherent jurisdiction to ensure its earlier ruling is implemented and not rendered nugatory. Tarikh : 13 November 2025 ……………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) HAKIM MAHKAMAH TINGGI MALAYA KUALA LUMPUR Peguam Plaintif : Lim Wei Han & Gan Yee Von Tetuan Enho Grace & Partners Peguambela & Peguamcara Peguam Defendan Pertama : Hadiputera bin Mohd Dzulrila Tetuan Sanjay Mohan Peguambela & Peguamcara Peguam Defendan Kedua : Muhammad Amir Basiruddin Suruhanjaya Syarikat, Malaysia