Perdana Specialist Hospital Sdn. Bhd. v Akiran Services Sdn. Bhd. (WA-24NCC(ARB)-9-03/2025)

The Plaintiff, Perdana Specialist Hospital Sdn Bhd, seeks to set aside the Arbitration Award under section 37 of the Arbitration Act or in the alternative for an order that the said Award be set aside and remitted back to the said arbitrator to be considered afresh based on the issues of law decided by this Court under section 42 of the Arbitration Act. This Originating Summons is heard together with the Originating Summons No: WA-24NCC(ARB)- 17-06/2025 filed by the Defendant to register the same Award dated 21-8-2024.

After considering the issues put forward by the Plaintiff and the Defendant, I find that this is not a suitable case for this Court to exercise its powers to set aside the said Arbitration Award made on 21-8-2024. I do not find that the grounds set forth by the Plaintiff shows any breach of natural justice. I further find that the decision of the arbitrator was made in accordance with the terms of the agreement to arbitrate and within the scope of arbitration. The arbitrator had correctly applied his minds to what was pleaded by the parties, the evidence produced at trial and the submissions of counsels during the arbitration proceedings.

I therefore do not find any procedural errors and I do not find that the Plaintiff’s rights to a fair hearing in accordance with the principles of natural justice has been breached.

In addition to the above, I also do not find that the Award dated 21-8-2024 is wrong and repugnant against the public policy of Malaysia and do not find that there are any parts of the Award that should be interfered with by this court. The same grounds have been relied on by the Plaintiff in the Originating Summons No: WA-24NCC(ARB)-17-06/2025 to resist the registration of the said Award. This Originating Summons is the Defendant’s application under section 38 of the Arbitration Act to have the same Award registered as a Judgment of this Court. I find that the Award should be recognised.

I also find that section 42 of the Arbitration Act has since been deleted and is of no effect. I do not have to deal with this part of the application filed by the Plaintiff. For reasons stated below, I dismissed the Originating Summons No: WA-24NCC(ARB)-9- 03/2025 and allowed the Originating Summons No: WA- 24NCC(ARB) 17-06/2025. B. Applicable Law on Setting Aside Arbitration Award under section 37 of the Arbitration Act or non-recognition of Award under Section 39 of the Arbitration Act

I reproduce section 37 and section 39 of the Arbitration Act: -

An award may be set aside by the High Court only if-S/N We1yXbjtHkuB9deAqr93A

The party making the application provides proof that-

a party to the arbitration agreement was under any incapacity;

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of Malaysia;

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party's case;

(iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

subject to subsection (3), the award contains decisions on matters beyond the scope of the submission to arbitration; or

(vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or

The High Court finds that-

the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or

(ii) the award is in conflict with the public policy of Malaysia.

Without limiting the generality of subparagraph (1)(b)(ii), an award is in conflict with the public policy of Malaysia where-

the making of the award was induced or affected by fraud or corruption; or

a breach of the rules of natural justice occurred-

during the arbitral proceedings; or

(ii) in connection with the making of the award.

Where the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside.

An application for setting aside may not be made after the expiry of ninety days from the date on which the party making the application had received the award or, if a request has been made under section 35, from the date on which that request had been disposed of by the arbitral tribunal.

Subsection (4) does not apply to an application for setting aside on the ground that the award was induced or affected by fraud or corruption.

On an application under subsection (1) the High Court may, where appropriate and so requested by a party, adjourn the S/N We1yXbjtHkuB9deAqr93A proceedings for such period of time as it may determine in order to allow the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside.

Where an application is made to set aside an award, the High Court may order that any money made payable by the award shall be brought into the High Court or otherwise secured pending the determination of the application. Section 39 of the Arbitration Act

Recognition or enforcement of an award, irrespective of the State in which it was made, may be refused only at the request of the party against whom it is invoked-

where that party provides to the High Court proof that-

a party to the arbitration agreement was under any incapacity;

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of the State where the award was made;

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party's case; S/N We1yXbjtHkuB9deAqr93A

(iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

subject to subsection (3), the award contains decisions on matters beyond the scope of the submission to arbitration;

(vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or

(vii) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or

if the High Court finds that-

the subject-matter of the dispute is not capable of settlement by arbitration under the laws of

(ii) the award is in conflict with the public policy of Malaysia. S/N We1yXbjtHkuB9deAqr93A

If an application for setting aside or suspension of an award has been made to the High Court on the grounds referred to in subparagraph (1)(a)(vii), the High Court may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.

Where the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced.

The leading cases in this area are Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd [2020] 12 MLJ 198 and Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd [2020] 9 CLJ 466.

I find that the principles of law applicable in an application to set aside an arbitration award premised on section 37 and section 39 of the Arbitration Act has been succinctly explained by Aliza Sulaiman J in Ocned Water Technology Sdn Bhd v UEM Builders Berhad & Anor and another case [2023] CLJU 2727 as follows: - [24] Based on the provisions in the AA 2005 and the case authorities to date, the legal principles in relation to an application to set aside an award under s. 37 AA 2005, and specifically, pursuant to the subparagraphs S/N We1yXbjtHkuB9deAqr93A relied upon by UB-EP in the Setting Aside Application, may be summarised as follows:

an award made by an arbitral tribunal pursuant to an arbitration agreement is final and binding on the parties (see sub-s 36(1) AA 2005);

the court shall not intervene in matters governed by the AA 2005 except where so provided in the said Act (see s. 8 AA 2005);

the grounds enumerated in s. 37 are exhaustive and the court cannot set aside an award for reasons other than those that are listed. Further, the said grounds need to be construed narrowly as they represent exceptions to the finality of arbitration awards as stipulated in s. 36 AA 2005. 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 minimising judicial interference in arbitral awards [see Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 1 CLJ 1; [2019] 2 MLJ 413 (FC) and Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd & Another Appeal [2020] 9 CLJ 466; [2020] 6 MLRA 124 (FC)];

when considering the exercise of discretionary power under subparagraphs 37(1)(a)(iv), 37(1)(a)(v) and 37(1)(b)(ii) AA 2005, the court does not sit as an S/N We1yXbjtHkuB9deAqr93A appellate court and hence, the merits of the parties' respective case before the arbitral tribunal are not open to scrutiny [see The Government of India v Cairn Energy India Pty Ltd & Ors [2013] CLJU 1323; [2014] 9 MLJ 149 (HC)];

In respect of subparagraphs 37(1)(a)(iv) and (v) AA 2005, the disputes which the parties choose to submit for arbitration will demarcate the jurisdiction of the arbitral tribunal in the arbitral proceedings between them. An arbitral tribunal has no jurisdiction to resolve disputes that have not been referred to it in the submission to arbitration. In deciding whether an award deals with a dispute not contemplated by or not falling within the terms or scope of submissions to arbitration and whether an award contains decision on matters beyond the scope of the submission to arbitration, the dispute that was referred to the arbitrator must be determined by reference to the pleadings which were submitted by the parties during the arbitration. Pleadings in arbitral proceedings provide a convenient way for the parties to define the jurisdiction of the arbitrator by setting out the precise nature and scope of the disputes in respect of which they seek the arbitrator's adjudication. The burden lies on the party applying to set aside an award to prove, on a balance of probabilities, that there is a "new difference" which was not relevant to the determination of the dispute, and it S/N We1yXbjtHkuB9deAqr93A was not an issue in dispute between the parties. In this regard, the parties' pleadings and submissions during the course of the arbitration are relevant considerations [see PT Prima International Development v Kempinski Hotels SA and other appeals [2012] 4 SLR 98, Perwira Bintang Holdings Sdn Bhd v Kerajaan Malaysia [2013] CLJU 1336; [2014] 11 MLJ 561 (HC) and Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 1

with regards to subparagraphs 37(1)(b)(ii) and 37(2)(b)(i) and (ii) AA 2005 -

in applying the concept of public policy for the purpose of setting aside an award under s. 37 of the AA 2005, it must be read narrowly and more restrictively. The concept of public policy must be one taken in the higher sense where some fundamental principle of law or justice is engaged, some element of illegality, where enforcement of the award involves clear injury to public good or the integrity of the court's process or powers will be abused. The injustice must have real effect and had prejudiced the basic rights of the applicant;

(ii) the court's intervention should be sparingly used, and the court must be compelled that a strong case has been made out that the arbitral award conflicts with the public policy of Malaysia. Even though the court finds that a breach of the rules of natural justice has been S/N We1yXbjtHkuB9deAqr93A established or that an arbitral award is in conflict with the public policy under s. 37 AA 2005, it does not necessarily mean that the award must be set aside as a matter of course. The power of the court to set aside an award under s. 37 is discretionary and this power must be exercised judiciously and only when it is just to do so. In considering whether the discretion should be exercised, the court must undertake an evaluation of relevant factors such as the seriousness, magnitude or materiality of the breach; its nature and its impact; whether the breach would have any effect on the outcome of the arbitration and leaving room for casual breach or occasional error; costs of rehearing and delay in raising the complaint. The policy of encouraging arbitral finality will dissuade the court from exercising discretion when the breach is relatively immaterial or was not likely to have affected the outcome [see Kyburn Investments Ltd v Beca Corporate Holdings Ltd [2015] 3 NZLR 644; Sigur Ros Sdn Bhd v. Master Mulia Sdn Bhd [2018] 8 CLJ 291(CA), Jan De Nul (supra) and Pancaran Prima (supra)]; and

(iii) the guiding principles on the exercise of residual discretion when an application for setting aside an award is grounded on breach of natural justice are as follows: "First, the court must consider: (a) which rule of natural justice was breached; (b) how it was S/N We1yXbjtHkuB9deAqr93A 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 We1yXbjtHkuB9deAqr93A [see paragraph 53 in Master Mulia Sdn Bhd v. Sigur Ros Sdn Bhd [2020] 9 CLJ 213; [2020] 6 MLRA 51 at pp 80 - 81 (FC)].”

I also refer to the judgment of Liza Chan J in Tune Group Sdn Bhd & Ors v Padda Gurtaj Singh [2022] CLJU 2228: - "[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 - Garden Bay Sdn Bhd v. Sime Darby Property Bhd [2018] 6 CLJ 199; [2018] 2 MLJ 636 CA at [15]; Pembinaan LCL Sdn Bhd v. SK Styrofoam (M) Sdn Bhd [2007] 3 CLJ 185; [2007] 4 MLJ 113 CA at Held (1) and [14] - [16]; Infineon Technologies (M) Sdn Bhd v. Orisoft Technology Sdn Bhd (previously known as Orisoft S/N We1yXbjtHkuB9deAqr93A Technology Bhd) and another application [2010]

24.2 An applicant cannot challenge the merits of, reopen and/or re-argue the findings and decision of the Tribunal on the substantive issues of the dispute decided by Tribunal - Master Mulia (supra) FC at [54]; Brunsfield Project Management Sdn Bhd v. Ingeniur Bersekutu Consulting Engineers [2015] CLJU 1546 CA at [33], [41] and [44]; MRCB Engineering Sdn Bhd v. Lee Hon Min & Others [2018] CLJU 835 HC at [22] - [27]; The Government of India v. Vedanta Ltd (legal successor to Cairn India Ltd) & Anor [2018] CLJU 617; [2018] MLJU 630 HC at [64];

24.3 The Award cannot be challenged on alleged points of law or interpretation of law. This would have been permissible only specifically under s. 42 which was appealed and dealt with at a later part of this judgment - Huawei Technologies (Malaysia) Sdn Bhd v. Maxbury Communications Sdn Bhd & Another Appeal [2019] 6 CLJ 588; [2019] MLJU 1755 CA at [38], [41] to [43] which held that error of law could only be appealed under s. 42 and not s. 37 of the AA 2005. All errors of fact and/or law are errors committed within the scope of jurisdiction or mandate of the arbitrator. To hold otherwise would result in every award being subject to review, and in effect, appeal by the courts; Ketua Setiausaha Dalam Negeri & Anor S/N We1yXbjtHkuB9deAqr93A v. Salconmas Sdn Bhd [2020] CLJU 422; [2020] MLJU 476 HC at [60] on the effect of the deletion s. 42 and that all arbitral awards can no longer be challenged on the ground that the arbitrator had fallen into an error of law;

24.4 The limited grounds of challenge are as set out in ss. 37 and 39 AA - Garden Bay Sdn Bhd v. Sime Darby Property Bhd [2018] 6 CLJ 199; [2018] 2 MLJ 636 CA at [12];

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. For breach of public policy - Pancaran Prima Sdn Bhd v. Iswarabena Sdn Bhd & Another Appeal (supra) FC at [143]; Jan De Nul supra at [55] and [58] Sigur Ros Sdn Bhd v. Master Mulia Sdn Bhd [2018] CLJU 2125; [2018] 3 MLJ 608 CA at [31] - [33] PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] 1 SLR 597 (Singapore Court of Appeal) at [59]. On breach of natural justice - Pancaran Prima Sdn Bhd v. Iswarabena Sdn Bhd & Another Appeal (supra) at [139] & [140]; Master Mulia at para [53] & [62]; AKN and another v. ALC and others and other appeals (supra) at [39]; Kyburn Investments Ltd v. Beca Corporate Holdings Ltd [2015] 3 NZLR 644 (New Zealand Court of Appeal) at [41] - [44];

24.6 Matters solely reserved to the Tribunal:

24.6.1 finding and assessment of the facts and evidence - Pancaran Prima Sdn Bhd v. Iswarabena Sdn Bhd & Another Appeal (supra) at [132]; Garden Bay at [53]; Chain Cycle Sdn Bhd v. Kerajaan Malaysia [2016] 1 CLJ 218; [2016] 1 MLJ 681 CA at [61], Ketua Setiausaha Dalam Negeri & Anor v. Salconmas Sdn Bhd [2020] CLJU 422; [2020] MLJU 476 HC at [60];

24.6.2 interpretation of law - Huawei Technologies at [38], [41], [42] & [43] [Tab 22 of SSPC's BOA (Vol II) Encl. 110 p. 158]; Ketua Setiausaha Dalam Negeri & Anor v. Salconmas Sdn Bhd (supra) at [60], Cairn Energy India Pty Ltd & Anor v. The Government of India [2010] 2 CLJ 420; [2009] 6 MLJ 795 CA at [2], [10], [11], [21] to [24], Kluang Health Care Sdn Bhd v. Lee Yong Beng [2016] 1 CLJ 281; [2015] MLJU 77 3 HC at [36], [37] & [40];

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 S/N We1yXbjtHkuB9deAqr93A 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 - Huawei Technologies (supra) at [38], [41] to [43], [45] and [46]; The Government of India v. Cairn Energy Pty Ltd & Ors [2012] 3 CLJ 423; [2014] 9 MLJ 149 HC at [130] to [137], PT Asuransi (supra) at [37] to [39] 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 - Huawei Technologies (supra) at [42]."

I also refer to the decision of Aliza Sulaiman J in Tunas Manja Development & Construction (KL) Sdn BHd v SPNB Aspirasi Sdn Bhd & Another case [2023] 10 CLJ 644. C. Reasoning of this Court - Dismissal of the application to set aside the Award and allowing the application for recognition

The Plaintiff and the Defendant entered into a Cleaning Agreement dated 1-1-2019. The appointment was for a period of 36 months from 1-1-2019 to 31-12-2021.

The agreement could be extended for a further period of 2 years with the condition that the Defendant notifies the Plaintiff of the extension of the Agreement 3 months before the expiry of the said agreement.

The agreement between parties contained the following agreement to arbitrate as it appears in clause 16. For ease of reference the said clause is reproduced herein: -

The notice to arbitrate filed by the Defendant dated 29-8-2022. The said notice contained the following claims: - …

The Defendant did plead the following facts in its claim: - S/N We1yXbjtHkuB9deAqr93A …

The Plaintiff has also answered the above allegations with the following response in its Defence: -

The claim was heard by the arbitrator on 18-9-2023, 19-9-2023 and 20-9-2023. After hearing parties and submissions from the counsels for the litigants, the Arbitrator found in favor of the Defendant and the following Award was declared by the

The Plaintiff’s complaint alleges that: - a. The Arbitrator had decided the case beyond the remit of the scope of the notice to arbitrate and beyond the pleaded case of parties. It is wrong for the arbitrator to have decided on the merits of the case not within the scope of arbitration. b. The Arbitrator had decided the case based on the issue of estoppel and waiver even though the said issues were not listed as part of the issues to be tried. c. That the Plaintiff was not given the opportunity to challenge the evidence of the Defendant’s witnesses on the issue of waiver and estoppel as they were not part of the Defendant’s original case and this constituted a material S/N We1yXbjtHkuB9deAqr93A breach of the natural justice justifying setting aside the Award. d. That the learned Arbitrator had awarded the full contract sum to the Defendant even though it did not undertake any work for the extended period of 2 years beyond the original time frame.

The Plaintiff has helpfully reproduced the decision of the Court of Appeal in Eng Han Engineering Sdn Bhd v Toshiba Elevator (M) Sdn Bhd & Another appeal [2025] CLJU 1148. In that case, Wong Kian Kheong JCA delivering judgment of the Court of Appeal held: - “32. It is not disputed that there are two rules of natural justice, namely -

the first rule of natural justice [1st Rule (Natural Justice)] requires an arbitral tribunal -

to be free from actual bias; and

if there is no actual bias on the part of an arbitral tribunal, the arbitral tribunal should be perceived by "a fair-minded and informed observer' that there is no real danger of bias on the part of the arbitral tribunal - please refer to the Court of Appeal's judgment in Wawasan Raya (M) Sdn Bhd & Anor v. MARC Service S/N We1yXbjtHkuB9deAqr93A Residence Management Corporation [2025] 4 MLRA 1, at [22(1)]; and

according to the second rule of natural justice [2nd Rule (Natural Justice) ] -

before an arbitral tribunal makes a final award, all parties in an arbitration shall have a right to -

adduce all relevant documentary evidence in the arbitral proceedings;

(ii) examine all witnesses who testify in the arbitration; and

(iii) to make submission, written and oral, to the arbitral tribunal; and

in Glaziers Engineering Pte Ltd v. WCS Engineering Construction Pte Ltd [2018] 2 SLR 1311, at [55] to [65], a case decided by Singapore's Court of Appeal, Steven Chong Horng Siong JA explained that there are three scenarios [3 Scenarios (Glaziers Engineering)] as follows - "(1) An omission to invite submissions on the applicable standard of persuasion or proof is not a breach of the fair hearing rule

When an Applicant relies on a breach of the rules of natural justice to set aside an award, we are bound by the following judgment of the Federal Court case of Master Mulia, at [53] and [58]: S/N We1yXbjtHkuB9deAqr93A "[53] In the light of the above, we think that the guiding principles on the exercise of residual discretion when an 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

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; S/N We1yXbjtHkuB9deAqr93A Seventh, the discretion given the Court was intended to confer a wide discretion dependent on the nature of the breach and its impact. 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.”

The Plaintiff counsel also refers to Master Mulia Sdn Bhd v Sigur Ros (Supra), a decision of the Federal Court that was referred to earlier above. For ease of reference, I reproduce relevant parts of the judgment of Vernon Ong FCJ: - “[53] In the light of the above, we think that the guiding principles on the exercise of residual discretion when an 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; S/N We1yXbjtHkuB9deAqr93A 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 to the court was intended to confer a wide discretion dependent on the nature of the breach and its impact. 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 S/N We1yXbjtHkuB9deAqr93A 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.”

I also refer to the decision of Aliza Sulaiman J in OCNED Water Technology Sdn Bhd v UEM Builders Berhad & Anor and another case [2023] CLJU 2727, the decision of the Federal Court in Thai-Lao Lignite Co Ltd & Anor v Government of the Lao Peoples Democratic Republic [2017] 9 CLJ 273 and the Court of Appeal in Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 6 MLJ 126. It is sufficient for me to reproduce the judgment of Mohamad Ariff JCA in Perwira Bintang: - "... This is an area of arbitration law which allows the court to set aside an award on the ground that an arbitrator had decided on a 'new difference' which is irrelevant to the claim, the 'new difference' being understood as a new dispute not contemplated by or not falling within the terms of the arbitration submission. The S/N We1yXbjtHkuB9deAqr93A underlying rationale for this rule rests on the consensual nature of arbitration. Parties are not compelled to resort to arbitration contractually, but if they provide for it and refer their dispute to arbitration, the mandate of the arbitrator must be limited to the terms defined by the parties for him to exercise his jurisdiction. If the arbitrator strays from the confines of this mandate, he will be acting in excess of his jurisdiction, even though he may have the initial and primary jurisdiction to arbitrate between the parties."

Jeffrey Tan FCJ in Thai-Lao Lignite Ltd & Anor v Government of the Lao [2017] 9 CLJ 273 stated: - “In relation to 'the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration' and 'the award contains decisions on matters beyond the scope of the submission to arbitration', William & Kawharu supra at 17.5.4 thus commented on the first limb of art 34(2)(a)(iii) of the NZ Arbitration Act (the equivalent of section 37(1)(a)(iv) and (v) of AA 2005): This ground for setting aside is directed at situations in which a tribunal has jurisdiction under a valid arbitration agreement, but has exceeded the authority by dealing in the award with matters that go beyond the terms of the arbitration agreement or the scope of S/N We1yXbjtHkuB9deAqr93A the issues referred by the parties for resolution... The tribunal also has an obligation to take particular care to keep within the confines of these matters that the parties have plainly put in issue. If the tribunal exceeds its authority in respect of some matters only, and its decisions on those matters are severable from decisions on matters made within the submission to arbitration, the High Court may only set those parts of the award containing the decisions on matters not submitted to arbitration."

I further refer to the judgment of Ramli Ali FCJ in Jan de Nul Sdn Bhd v Vincent Tan Chee Youn [2019] 2 MLJ 413: - "Section 37(2)(b)(ii) of the AA 2005 provides that an award made by an arbitral tribunal would be in conflict with the public policy of Malaysia if a breach of the rules of natural justice occurred in connection with the making of the award. The circumstances stated in s. 37(2) are by no means exhaustive. Other appropriate circumstances may also fall under the category of 'public policy' in view of the opening phrase 'without limiting the generality of sub-para (1)(b)(ii)' as appears in s. 37(2) of the AA 2005. However, it must be appreciated that the concept of public policy generally is itself a broad concept. 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 S/N We1yXbjtHkuB9deAqr93A narrowly and more restrictively. The court's intervention should be sparingly used. The court must be compelled that a strong case has been made out that the arbitral award conflicts with the public policy of Malaysia. As clearly stated by the Court of Appeal in Sigur Ros (with which we agree): 'The concept of public policy must be one taken in the higher sense where some fundamental principle of law or justice is engaged, some element of illegality, where enforcement of the award involves clear injury to public good or the integrity of the court's process or powers will be abused'. Even though the court finds that a breach of the rules of natural justice has been established or that an arbitral award is in conflict with the public policy under s. 37 of the AA 2005, it does not necessarily mean that the award must be set aside as a matter of course. The power of the court to set aside an award under s. 37 is discretionary and will not be exercised automatically in every case where the complaints are established (see: Kyburn Investments Ltd v. Beca Corporate Holdings Ltd [2015] 3 NZLR 644; Sigur Ros Sdn Bhd). 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 S/N We1yXbjtHkuB9deAqr93A 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 (see: Ajwa For Food Industries Co (MlGOP), Egypt v. Pacific Inter-Link Sdn Bhd & another appeal [2013] 2 CLJ 395; [2011] MLJU 1537; Taman Bandar Baru Masai Sdn Bhd v. Dindings Corporations Sdn Bhd [2010] 5 CLJ 83; [2009] MLJU 793; and Lesotho Highlands Development Authority v. Impregilo SpA and others [2005] UKHL 43). 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. The scope of public policy ground for setting aside an arbitral award could only be invoked in deserving case ie in instances where it appears a violation of the most basic notions of morality and justice. It covers fundamental principles of law and justice in substantive as well as procedural respect. Instances where the upholding of an arbitral award would shock the conscience, or clearly injurious to the public good, or wholly offensive to the ordinary reasonable and fully informed member of the public, had been held by courts S/N We1yXbjtHkuB9deAqr93A in various jurisdiction to fall within the category of public policy ground for setting aside an arbitral award. Thus, instances such as 'patent injustice', 'manifestly unlawful and unconscionable', substantial injustice', 'serious irregularity' and other similar serious flaws in the arbitral process and award, would also fall within the applicable concept of public policy and therefore by virtue of s. 37(1)(b)(ii) of the AA 2005 when proven, can be a ground for the court to exercise its discretion to set aside the award (see: Ajwa for Food Industries). Such instances fall within 'the basic and fundamental notions or principles of justice'. The court must adopt the principle as laid down by Howard M Holtzmann and Joseph E Neuhans as found in their commentary in A guide to the UNCITRAL Model on International Commercial Arbitration: Legislative History and Commentary 'that the term 'public policy' which was used in the 1958 New York Convention and many other treaties, covered fundamental principles of law and justice in substantive as well as procedural respects'. The terms 'patent injustice' or 'substantial injustice' or 'manifestly unlawful and unconscionable' as often used by the court in setting aside arbitral awards, do not mean injustice which is more than de minimis; what is required is that the injustice had real effect and had prejudiced the basic right of the applicant (see: Soh Beng Tee & Co Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SLR 86)."

Having considered the submissions put forth by the parties, I find that the Arbitrator did not decide the case outside the scope of what was submitted to arbitration and did not decide the case beyond the remit of what was pleaded by parties.

I do accept that the words “waiver” and “estoppel” was not specifically pleaded by the Defendant in its claim. However, the facts that were relied on by the Defendant did appear in the notice to arbitrate the claim and were even raised during the course of the proceedings before the arbitrator. Counsel for the Plaintiff and the Defendant in the Arbitration was given ample opportunity to address this issue. This can be seen from the notes of evidence produced by parties and quoted in their respective submissions.

Therefore, it cannot be said that the Defendant is not entitled to raise the issue of waiver and estoppel to rebut the allegation by the Plaintiff that the time frame for renewal of the Agreement had expired. The Defendant did contend in its particulars of claim and in the notice to arbitrate that they had continued to negotiate the renewal of the Agreement despite the fact that notice to renew was given after the time frame provided in the said Agreement. This would have entailed the Defendant the right to expect that the time frame was extended by conduct of the parties.

This can be seen in the decision of the said Arbitrator, material parts of which are reproduced again: -

I also find that the reasoning of the learned Arbitrator in considering the said issues of law based on the facts as pleaded and presented at the arbitration is correct. To do otherwise, would be contrary to established principles of Malaysia law. I refer to the judgment of Gopal Sri Ram in Boustead Trading

Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283: - “Now it is quite correct to state that Courts have in their decisions identified estoppel as a matter which requires to be pleaded under the rules of Court. (See, Associated Pan Malaysia Cement Sdn. Bhd. v. Syarikat Teknikal & Kejuruteraan Sdn. Bhd. [1990] 2 CLJ 913; [1990] 3 MLJ 287, 296). The operative rule is said to be 0. 18 r. 8(l) of S/N We1yXbjtHkuB9deAqr93A the Rules of the High Court, 1980, although, in our view ,r. 7(l) of that Order is of equal importance because of the substantive law upon the subject of estoppel. These two rules read as follows:

(1) Subject to the provisions of this rule and rr. 10, 11 and 12, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits. ...

(1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, perfomance, release, any relevant statute of limitation, fraud or any fact showing illegality:

which he alleges makes any claim or defence of the opposite party not maintainable; or

which, if not specifically pleaded, might take the opposite party by surprise; or

which raises issues of fact not arising out of the preceding pleading. In our judgment, the requirement of these rules is sufficiently met if the material facts giving rise to the estoppel are sufficiently pleaded without actually using S/N We1yXbjtHkuB9deAqr93A the term "estopped". See, Lal Somnath Singh & Ors. v. Ambika Prasad AIR [1950] All. 121, 131.) It may be desirable for a pleader to use that term; but it is not fatal if he does not. One must not lose sight of the object of modern pleadings which is to prevent surprise and to enable disputes to be litigated in an orderly fashion: Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v. Setiausaha Suruhanjaya Pasukan Polis & Ors. [1995] 1 CLJ 619, 320. Thus, although Courts, through their pronouncements, require estoppel to be pleaded, there is also judicial recognition of circumstances that may take a particular case out of the governing principle. First, there is the principle, already alluded to, that what requires to be pleaded are the relevant facts which a litigant claims to give rise to an estoppel and not any special formula in staccato: Laws Holdings Pty. Ltd. v. Short & Ors. [1972] 46 ALJR 563, 571. Secondly, even where a party has failed to set out the material facts in his pleading, but there is occasioned no surprise to his opponent, a Court may, in the interests of justice, permit the point to be taken: Coppinger v. Norton [1902] 2 Ir. R. 232, 243;Co-operative Town Bank v. Shanmugam Pillay AIR. Rang. 265, 268;Laws Holdings (supra). Useful reference may also be had to the instructive judgment of Edgar Joseph Jr. J inRosita bte Baharom & Anor. v. Sabedin bin Salleh [1992] 1 MLJ S/N We1yXbjtHkuB9deAqr93A 379, affirmed by the Supreme Court in [1993] 1 MLJ

Thirdly, where there is no pleaded case of estoppel, but there is let in, without any objection, a body of evidence to support the plea, and argument is directed upon the point, it is the bounden duty of a Court to consider the evidence and the submissions and come to a decision on the issue. It is no answer, in such circumstances, to say that the point was not pleaded: Oversea-Chinese Banking Corporation Ltd. v. Philip Wee Kee Puan [1984] 2 CLJ 319 (Rep);[1984]”

What the learned Arbitrator had done was merely identify the law that were applicable to the facts of the case as pleaded by parties. He did not act beyond the scope of the arbitration but merely applied the applicable legal principles to the facts of the case based on the pleadings, the evidence gleaned from the documents filed and the evidence of witnesses produced at trial. He did not act beyond the scope of the arbitration and did not act beyond what was pleaded by the litigants. Simply put he did not act on a frolic of his own and decided on issues that were not submitted to arbitration or facts that were not pleaded by the litigants.

I do accept the Plaintiff’s contention that the word “estoppel” or “waiver” was not specifically pleaded by the Defendant in the notice to arbitrate or its particulars of claim. Nevertheless, it S/N We1yXbjtHkuB9deAqr93A must be borne in mind what was actually decided by the learned Arbitrator. For ease of reference, I reproduce the relevant parts of the Award: -

The learned Arbitrator agreed that under the terms of the Agreement, it is mandatory for an application for extension to be filed within the 3 months period before the Agreement expires. However, as the Plaintiff did not reject the application filed by the Defendant on the said reason and that the Plaintiff had continuously allowed discussions on the said extension and even informed the Defendant that this will be considered by its head office as seen in the letter dated 1-11-2021, 7-11-2021 and 15-12-2021, it is no longer tenable for the Plaintiff to say that the application is beyond the contractual time. By conduct the Plaintiff had led the Defendant to its belief that the said extension was being considered by its head office and was not S/N We1yXbjtHkuB9deAqr93A rejected. What the Plaintiff should have done from outset is to have stated on record that the time limit for extension has lapsed. That would have closed the issue once and for all.

Therefore, as the particulars of the said letters and the conduct of the Plaintiff were pleaded at paragraphs 15 to 22 of the particulars of claim, this issue has been pleaded and is an alive issue before the Arbitrator. I agree that the claim was not elegantly drafted. However, I accept, as found by the Arbitrator, that the issue of waiver and estoppel were alive issues in the arbitration and he is duty bound to consider and decide on the same. The notes of evidence also indicate that the learned Arbitrator had notified the parties of the said issue and directed that they submit on the same before he makes any decision on the claim. This would mean that there is no breach of natural justice as claimed.

To ensure I have provided clarity on why I find that the said issue of waiver / estoppel was sufficiently pleaded by the Defendant, I refer to the decision of the Court of Appeal in Double Advantage Sdn Bhd v Paduan Hebat Sdn Bhd & Anor [2017] CLJU 1391 as follows: - [34] Useful reference on the law relating to estoppel may be had to the Federal Court decision of Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283; [1995] 3 MLJ 331 where in S/N We1yXbjtHkuB9deAqr93A speaking for the Court, Gopal Sri Ram JCA (as he then was) observed (at p 344-345): "The time has come for this court to recognize that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless." [35] Considering the circumstances as set out earlier, we think that at least estoppel by acquiescence or estoppel by silence or inaction applies to the instant case. The test as to estoppel by acquiescence can be found in Moorgate Mercantile Co Ltd v. Twitchings [1976] 2 All ER 641 through the dissenting speech of Lord Wilberforce as follows (at p 645-646): "In order that silence or inaction may acquire a positive content it is usually said that there must be a duty to speak or to act in a particular way, owed to the person prejudiced... What I think we are looking for here is an answer to the question whether, having regard to the situation in which the relevant transaction occurred, as known to both parties, a reasonable man, in the position of the "acquirer" of the property, would expect the "owner" acting S/N We1yXbjtHkuB9deAqr93A honestly and responsibly, if he claimed any title in the property, to take steps to make the claim known..." (as cited with approval in Republic of India & another v. India Steamship Co Ltd (The Indian Endurance) (No. 2) [1996] 3 All ER 641). [36] In the case of The Stolt Loyalty [1993] 2 Lloyd's Rep 281, Clarke J (as he then was) had occasion to consider the authorities dealing with estoppel by acquiescence or estoppel by silence or inaction as follows (at pp 289- 290): "The question is whether on those facts the demise charterers are estopped from relying upon the one year time limit. I was referred to a number of cases in which estoppel by acquiescence or estoppel by silence or inaction has been discussed. An estoppel of this type is an equitable estoppel. In recent years there has been a tendency to reject "any rigid classification of equitable estoppel into exclusive and defined categories"; per Mr. Justice Robert Goff in Amalgamated Investment & Property Co. Ltd, v. Texas Commerce International Bank Ltd., [1982] 1 Q.B. 84 at pp. 103 to 104. Nevertheless, the following cases appear to me to establish that before a person can be held to be estopped as a result of mere inaction he must be S/N We1yXbjtHkuB9deAqr93A shown to be under a legal duty to take action of some kind: Spiro v. Lintern, [1973] 1 W.L.R. 1002; The Henrik Sif, [1982] 1 Lloyd's Rep. 456. The question then arises in what circumstances a person may be held to be under such a legal duty. In The Henrik Sif Mr. Justice Webster, after citing a dictum of Lord Wilberforce in Moorgate Mercantile Co. Ltd. v. Twitchings, [1977] A.C. 890 at p. 903, answered that question in this way (at p. 465): Nonetheless the dictum which I have cited seems to me to be most persuasive authority for the proposition that the duty necessary to found an estoppel by silence or acquiescence arises where "a reasonable man would expect' the person against whom the estoppel is raised "acting honestly and responsibly" to bring the true facts to the attention of the other party known by him to be under a mistake as to their respective rights and obligations. Mr. Justice Webster also cited with approval the following passage from the judgment of Mr. Justice Oliver in Taylor Fashions Ltd. v. Liverpool Victoria Trustee Co. Ltd., [1982] 1 Q.B. 133 at p. 147: ... in a case of mere passivity, it is readily intelligible that there must be shown a duty to speak, protest or interfere S/N We1yXbjtHkuB9deAqr93A which cannot normally arise in the absence of knowledge or at least a suspicion of the true position. The underlying basis for the existence of this estoppel, as in the case of all equitable estoppel, is that it must be unconscionable to allow the party estopped to deny that which he has allowed the other party to assume to be true. In the case just cited Mr. Justice Oliver put it thus (at pp. 151 to 152): Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle - whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial - requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to enquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behavior. That statement of principle was expressly approved by the Court of Appeal in Habib Bank Ltd. v. Habib Bank A.G. Zurich, [1981] 1 W.L.R. 1265. S/N We1yXbjtHkuB9deAqr93A There is a further aspect of this type of estoppel which is of importance. It was put in this way by Lord Justice Kerr giving the judgment of the Court of Appeal in The August Leonhardt, [1985] 1 Lloyd's Rep. 28 at p. 35: The applicability of the doctrine of estoppel in any given case can also be tested in another way. There cannot be any estoppel unless the alleged representor has said or done something, or failed to do something, with the result that - across the line between the parties - his action or inaction has produced some belief or expectation in the mind of the alleged representee, so that, depending on the circumstances, it would thereafter no longer be right to allow the alleged representor to resile by challenging the belief or expectation which he has engendered. To that extant at least, therefore the alleged representor must be open to criticism."

The often-quoted judgment of Lord Denning in Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] 1 QB 84 also explains why I find that the issue of estoppel / waiver was pleaded by the Defendant and did arise in the arbitration: - S/N We1yXbjtHkuB9deAqr93A “The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or of law - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.”

I also refer to the decision of Lee Swee Seng JC (as he then was) in Citibank Bhd v Pembangunan Cahaya Tulin Sdn Bhd [2012] 9 MLJ 181 as follows: - S/N We1yXbjtHkuB9deAqr93A “[127] In the case of Public Textiles Berhad v. Lembaga Letrik Negara [1976] CLJU 120; [1976] 1 LNS 120; [1976] 2 MLJ 58, Raja Azlan Shah FJ (as his Royal Highness then was) quoted Scrutton LJ in the Court of Appeal (Greenwood v. Martin's Bank Ltd [1932] 1 KB 371, at p 380), and stated the principle as follows: The classic exposition of the principle of estoppel is that given by Parke B in delivering the judgment of the court in Freeman v. Cooke (1848) 2 Ex 654 663. He cites the rule in Pickard v. Sears (1837) 6 A & E 469 474: That, where on, by his words or conduct, willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time. [128] In the case of Tenaga Nasional v. Teobros Development Sdn Bhd [2008] CLJU 395; [2008] 1 LNS 395; [2008] 6 MLJ 391, it was held as follows: Looking at estoppel on a wider perspective, it has always been perceived that estoppel involves the principles of justice and equity. It concerns the principle that a person who has led another to believe in a certain state of affairs from going back on the words or conduct when it is unjust or unconscionable for him to do so (per Lord Denning MR in Moorgate S/N We1yXbjtHkuB9deAqr93A Mercantile Co Ltd v. Twitchings [1976] 1 QB 225 at p 241, [1975] 3 All ER 314 at p 323, (CA)). In modern times estoppel by representation is frequently applied and invoked. It arises when there is representation made either by statement or by conduct. It is said that conduct must necessarily include negligence (Freeman v. Cooke [1848] 2 Exch 654 at p 664) and silence (Pacol Ltd And Others v. Trade Lines Ltd and R/l Sif IV ('The Henrik Sif') Vol 1 Lloyd's Law Reports 456). [129] Along the same vein, the Court of Appeal in the case of Raju Jayaraman Kerpaya v. Chung Khiaw Bank Ltd [1997] 3 CLJ 216; [1997] 2 MLJ 590 held: Now, of the doctrines invented by the Court of Chancery, estoppel is surely the most flexible. It is a rule by which a court does justice between parties to litigation according to the facts and substantial merits of the case. The only question at issue where estoppel is relied upon is whether it is just that the party sought to be estopped ought to succeed upon a particular issue or in the action generally, as the case may be (see Boustead Trading

Sdn Bhd v. Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283; [1995] 3 MLJ 331).” S/N We1yXbjtHkuB9deAqr93A

In this case, the particulars of the conduct of the Plaintiff in accepting the application for extension and its decision in not rejecting the same outright and informing the Defendant that this decision was in the hands of its headquarters was pleaded. I cannot therefore find that the Plaintiff would have been caught by surprise by the decision of the Arbitrator that they were estopped from relying on the time limit provided under the terms of the Agreement. The issue of whether the Plaintiff rejected the said application, its reasons for rejection and that by their own conduct did agree to allow the application to be considered despite it being filed out of time, were clearly pleaded in the claim.

For the above reasons, I find that the learned Arbitrator did confine himself to the pleaded case and did not go astray as claimed by the Plaintiff.

I do not find that there has been any breach of natural justice or that this case falls within the category of cases where the discretion or power to set aside an Arbitration Award should be exercised. The decision by the arbitrator is also not against public policy as alleged by the Plaintiff. I find that the learned Arbitrator had (i) decided within the scope of the agreement to arbitrate, (ii) that the decision did not beyond the remit to arbitration and (iii) that the decision was based on the litigants pleaded case. Whether the said Award was correctly decided S/N We1yXbjtHkuB9deAqr93A goes to the merits of the claim and this Court is not entitled to interfere.

On the issue of the amount of award made by the Arbitrator, I note that the Plaintiff relies on the decision of the Federal Court in Ketua Setiausaha Kementerian Dalam Negeri & Anor v Salconmas Sdn Bhd [Federal Court Civil Appeal No: 01(F) - 25-06/2022 (W) and the decision of the Federal Court in Cubic Electronics Sdn Bhd v Mars Telecommunications Sdn Bhd [2019] 2 MLRA 83. I do not believe that the facts of this case fall into the category of cases where it could be said that the damages awarded were arbitrary and without any basis that it would be repugnant to allow it to be enforced.

Instead, I find that the said Award was made considering the relevant facts and all relevant circumstances based on the pleadings filed by parties and the notice to arbitrate. The said decision was made based on the merits of the case and should not be interfered by this Court.

It must be noted that the Arbitrator had only awarded the damages after finding that the Plaintiff had acted in breach of the Contract and Awarded damages as if the Agreement was extended for a period of 2 years. This is in line with section 74 of the Contracts Act which is reproduced herein: - S/N We1yXbjtHkuB9deAqr93A “(1) When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.”

In this case, the Plaintiff’s complaint on the damages awarded by the Arbitrator is reliant on the argument that it is against public policy and repugnant for a party to be paid for works that were not undertaken. The Plaintiff’s counsel argues that despite the finding that the Agreement was wrongfully not extended, the Defendant did not undertake the cleaning work for the next 2 years and should not therefore be paid as if they had undertaken the said obligation.

I do not accept the contentions raised by the Plaintiff. The award from the Arbitrator is in line with section 74 of the Contracts Act. The damages awarded are to compensate the Defendant and put him in the position as if the breach of the Agreement had not taken place. I refer to the decision of the Court of Appeal S/N We1yXbjtHkuB9deAqr93A in Karun Klasik Sdn Bhd v Tenaga Nasional Bhd [2023] 3 CLJ 175 where Gunalan Muniandy JCA held: - “[44] In our considered view, the appellant rightly contended that the correct approach to assessment that the LJ should have adopted was to apply the principle that the measure of damages should be as defined in Livingstone v. Rawyards Coal Co (1880) 5 App Cas 25 at p 38 as 'that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation'. [45] Following the FC decision, the liability of TNB for the wrongful disconnection of electricity supply to the appellant's factory was a non-issue. Likewise, that the appellant had suffered damages that required assessment as a result of that incident. We are in concurrence with the appellant that the measure of damages should be the profit that the appellant's business could have obtained from a sale of the products or the market value thereof. The entitlement should be for the appellant to be put into the position that it would have been in had the products in the cold rooms not spoiled as a result of TNB's disconnection of the electricity supply (see The Clyde [1856] Swab, 23 at p. 24).”

Therefore, I do not find that the award of damages made by the Arbitrator is against public policy as suggested by the Plaintiff. This is not a case where the Award is repugnant to our public policy. Parties were given ample opportunity to present each of their case to the Arbitrator and the Award is in line with applicable Malaysian law. I therefore find that the complaints made by the Plaintiff merely rest on the merits of this case and it is not the function of this Court to interfere unless the case falls within section 39 and section 37 of the Arbitration Act. D. Orders of this Court

For the above reasons, the Originating Summons No: Wa- 24NCC(ARB) 9-03/2025 filed by the Plaintiff (Perdana Specialist Hospital) to set aside the Award is dismissed with costs.

I also allow the Defendant’s application (Akiran Services Sdn Bhd) in the Originating Summons No: WA-24NCC(ARB) 17- 06/2025 to have the same Award Registered under Section 38 of the Arbitration Act. I do not find any reasons for the said Award not to be registered and eventually enforced as a Judgment of this Court. The Plaintiff has failed to show that any of the circumstances laid down under section 39 of the Arbitration Act is applicable in this case that justifies this Court to exercise of its powers not to recognize the said Award.

I further order that the Plaintiff (KPJ Perdana Specialist Sdn Bhd) pay the Defendant the total costs of RM 20,000.00 for both Originating Summons subject to allocator. The costs will be divided to RM 10,000.00 for each Originating Summons against KPJ Perdana Specialist Sdn Bhd. Dated 27th October 2025 (DATO' INDERA MOHD ARIEF EMRAN BIN ARIFIN) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR NCC 5 FEDERAL TERRITORY OF KUALA LUMPUR S/N We1yXbjtHkuB9deAqr93A Counsel : For the Plaintiff : Mr Mohd Shahrysham together with Ms. Fatin Adriana