Rio De Gibbraello Pte Ltd v Tetuan Harjit Sandhu, Wan & Associates (WA-22NCvC-222-04/2024)

Page 1 of 28 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR (BAHAGIAN SIVIL) GUAMAN SIVIL NO.: WA-22NCvC-222-04/2024 ANTARA RIO DE GIBBRAELLO PTE LTD (NO. PENDAFTARAN: 201804170C) … PLAINTIF DAN

1. TETUAN HARJIT SANDHU, WAN & ASSOCIATES (DISAMAN SEBAGAI FIRMA)

2. HARJIT SINGH SANDHU (NO. K/P:740221-13-5421)

3. PRAMJIT SINGH A/L RAGHBIR SINGH (NO. K/P:730709-08-5967) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Stay of Proceedings under Subsection 10(1) of the Arbitration Act 2005) 26/05/2026 14:57:53 WA-22NCvC-222-04/2024 Kand. 119 S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 2 of 28 PRELUSION [1] The First Defendant (D1) and the Second Defendant (D2)— referred to together as “D1D2”—apply for a stay of this court proceeding under subsection 10(1) of the Arbitration Act 2005 (AA 2005), so that the dispute between the parties may be referred to arbitration before the Singapore International Arbitration Centre (SIAC). The Plaintiff (P) opposes the application. [2] Should the subsection 10(1) stay be granted? PERTINENT FACTS [3] The following are the pertinent facts gleaned from the affidavit evidence. [4] P is a Singapore-incorporated company. P’s sole shareholder is Mr Gibbrael Isaak (Gibbrael). [5] D1 is a Malaysian law firm. D2 is a partner of the firm. [6] On 28.8.2023, P contracted with D1 to enter into an Escrow Agreement (EA). The EA’s stated purpose was to hold funds in trust as proof of funds for the purchase of a helicopter. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 3 of 28 [7] On 29.8.2023, P entered into a Sale and Purchase Agreement with Axia Aviation Ltd to purchase the helicopter. D1D2 were not parties to that agreement. [8] On 31.8.2023, P deposited USD2.5 million into D1’s escrow account. D1 held the money as escrow holder and stakeholder. D1 is authorised to withdraw the escrow money only on P’s instructions. [9] On 4.12.2023, on P’s instructions, D1D2 returned USD500K to P. [10] Later, D2 informed P (Gibbrael) that only USD1 million was left in the escrow account. [11] On 22.12.2023, D2 indicated by WhatsApp text message that he would return the balance. [12] On 27.12.2023, P instructed D1D2 to first return USD1 million, and the balance USD1 million could be returned the following week. D1D2 did not comply. [13] On 24.1.2024, P terminated the EA and demanded the return of the balance of USD2 million. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 4 of 28 [14] On 3.4.2024, P filed this proceeding by Writ, pleading breach of the EA, and seeking damages for breach, and consequential relief. [15] Within the Writ proceeding, D1D2 filed this application for a subsection 10(1) stay (stay application). THE APPLICABLE LAW Subsection 10(1) of the AA 2005: its mandatory nature [16] Subsection 10(1) of the AA 2005 provides that: "A court before which proceedings are brought in respect of a matter which is the subject of an arbitration agreement shall, where a party makes an application before taking any other steps in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed." [emphasis added] [17] The word "shall" is decisive. The provision is couched in mandatory terms. Once its conditions are met, the court has no residual discretion to refuse the stay. This was settled by the Federal Court in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 (FC); [2016] 5 AMR 635; [2016] 9 CLJ 1; [2016] 5 MLRA 529 (Press Metal Sarawak), at paragraphs [32], [33] and [38]. The Federal Court held that the court's inquiry is: first, whether “a binding S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 5 of 28 arbitration agreement or clause” exists; and second, whether the arbitration agreement or clause falls within any of the three statutory exceptions—it is null and void, inoperative, or incapable of being performed. [18] The court is “no longer required to delve into the details of the dispute”. The question of “whether there is a dispute” is “no longer a requirement to be considered” to grant a subsection 10(1) stay. If the arbitration agreement or clause is not null and void, or inoperative or incapable of being performed, the court must order a stay of the court proceeding. [19] The Federal Court's decision in Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd & Another Appeal [2020] 3 MLJ 345 (FC); [2020] 2 AMR 387; [2020] 4 CLJ 301; [2020] 2 MLRA 264 (Tindak Murni), at paragraph [35], reinforces the mandatory and “non-interventionist” character of subsection 10(1). Section 8 of the AA 2005—which prohibits court intervention in matters governed by the AA 2005 except as the Act expressly provides—underscores this approach. [20] A stay under subsection 10(1) is not a matter of the court yielding its jurisdiction; it is the court honouring a contractual bargain that Parliament has commanded it to enforce. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 6 of 28 [21] Section 9 of the AA 2005 defines an "arbitration agreement" as an agreement “to submit to arbitration all or certain disputes” arising in respect of “a defined legal relationship, whether contractual or not”. It may take the form of “an arbitration clause in an agreement”. And it must be in writing. [22] On the court's limited role at the stay stage, the Court of Appeal in Setia Awan Management Sdn Bhd v SPNB Aspirasi Sdn Bhd [2025] 4 MLJ 181 (CA); [2025] 5 AMR 225; [2025] 7 CLJ 578; [2025] 4 MLRA 619 (Setia Awan), at paragraphs [50], [57], [58], [105], similarly held that courts must adopt a non-intervention policy, i.e. a “hands-off approach”, hold the parties to their chosen mode of dispute resolution, and leave the question of merits to the arbitral tribunal. What tantamounts to a step in the proceeding? [23] On what amounts to a "step in the proceedings", the Court of Appeal in Airbus Helicopters Malaysia Sdn Bhd v Aerial Power Lines Sdn Bhd [2024] 2 MLJ 471 (CA); [2024] 3 AMR 125; [2024] 4 CLJ 243; [2024] 3 MLRA 152, at paragraph [32], held that a mere request for an extension of time (EOT) to file a Defence does not amount to a step in the proceedings. No prejudice had resulted from it. And the plaintiff there had not acted on it to its detriment. [24] The foundational principle is that a step in the proceedings must be one that unequivocally manifests the party's intention to abandon S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 7 of 28 arbitration and submit to the court's jurisdiction to resolve the dispute on the merits. The recent Court of Appeal decision in Apex Communications Sdn Bhd v Sumber Khazanah Sdn Bhd (dalam likuidasi) and another appeal [2026] 3 MLJ 152 (CA); [2026] 2 CLJ 477; [2025] AMEJ 3039; [2025] MLRAU 373 (Apex Communications), delivered six months ago in November 2025, confirms that requests for an EOT to prepare a Defence do not, of themselves, constitute taking steps in the court proceeding. Separability of an arbitration clause from the main contract housing it [25] On the separability of an arbitration clause, the Court of Appeal in Peninsula Education (Setai Alam) Sdn Bhd (previously known as Segi International Learning Alliance Sdn Bhd v Biaxis (M) Sdn Bhd (in liquidation) [2024] 5 MLJ 388 (CA); [2024] 10 CLJ 216; [2024] 6 MLRA 160; [2024] AMEJ 1754 (Peninsula Education), at paragraph [20], held that an arbitration agreement is autonomous from the parent contract that contains it. Even if the parent contract is impugned, the arbitration clause survives unless that clause itself is independently shown to be null and void, inoperative, or incapable of being performed. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 8 of 28 Meaning of a sham agreement [26] On the meaning of a sham agreement, the test is that stated by Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at 802 (Snook), adopted in Huat Hing Rubberwood Sdn Bhd v Goodnite Sdn Bhd & Ors [2018] MLJU 1650 (HC); [2018] AMEJ 1415; [2018] CLJU 1770; [2018] MLRHU 1423 (Huat Hing Rubberwood)—a sham agreement requires all parties to share “a common intention” that the document “does not create the legal rights and obligations” which it gives “the appearance of creating”. The intention must be bilateral and shared. Conduct to avoid arbitration [27] On tactical conduct to avoid arbitration, the High Court in Sunway Damansara Sdn Bhd v Malaysia National Insurance Bhd & Anor [2008] 3 MLJ 872 (HC); [2008] 2 AMR 467; [2007] 6 MLRH 764 (Sunway Damansara), at paragraph [18], held that a party who has agreed to arbitrate cannot rely on its own subsequent conduct— however inconsistent it is with that agreement to arbitrate—as grounds to escape it. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 9 of 28 ANALYSIS AND FINDINGS Issue 1: Whether D1D2 took a "step in the proceedings" before filing the stay application [28] P submits that D1D2 took steps in the proceedings before filing the stay application, hence forfeiting their right to a stay under subsection 10(1) of the AA 2005. Specifically, P points to D1D2's attendance at case management sessions before the Senior Assistance Registrar and the Judge, their request for an EOT to file an Affidavit in Reply to P’s injunction application proceeding, and their request for an EOT to file their Defence. P submits that these acts invoked the court's procedural machinery and that D1D2 made no reservation of the right to arbitrate. [29] P relies on (1) Mun Seng Fook v AIG Malaysia Insurance Bhd (formerly known as Chartis Malaysia) [2019] 7 MLJ 59 (HC); [2018] 3 AMR 400; [2018] 8 CLJ 394; [2018] 3 MLRH 203 (Mun Seng Fook);

(2) MISC Berhad v Cockett Marine Oil (Asia) Pte Ltd [2022] 8 MLJ 786 (HC); [2021] AMEJ 0444; [2021] 1 LNS 645; [2021] MLRHU 364 (MISC Berhad); (3) Winsin Enterprise Sdn Bhd v Oxford Talent (M) Sdn Bhd [2009] 4 AMR 562; [2010] 3 CLJ 634 (HC); [2009] 3 MLRH 699; [2009] MLJU 286 (Winsin Enterprise). S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 10 of 28 [30] D1D2 submit that they filed the stay application on 11.6.2024— the very date the Defence was due—without ever filing a Defence. The EOT requests were purely administrative steps made in the eReview case management system. They did not invoke the court's adjudicative process on the merits. The stay application was filed promptly. [31] I find in favour of D1D2 on this issue. My reasons are as follows. [32] First, the governing test is whether D1D2's conduct unequivocally demonstrates an intention to abandon arbitration and submit to the court's jurisdiction to determine the dispute on its merits. I find that administrative procedural requests—particularly requests made in case management sessions (as opposed to substantive proceedings)—do not meet this threshold. [33] Second, I adopt the very recent Court of Appeal decision in Apex Communications and find, consistent with that decision, that EOT requests to file pleadings or affidavits in interlocutory proceedings do not constitute steps in the proceedings. [34] I am aware that there are conflicting Court of Appeal decisions on this point. Where there is conflict among Court of Appeal decisions, I prefer the most recent, as they reflect the current judicial thinking on the matter. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 11 of 28 [35] Third, the cases on which P relies are distinguishable on their facts. In Mun Seng Fook, the respondent's solicitors there attended case management without reserving the right to arbitrate, and without any stay application on foot. In MISC Berhad, the defendant there actively asked for an EOT to file its Defence, and later filed a formal application for the EOT—an act going beyond a mere administrative request. In Winsin Enterprise, the defendant there formally asked the plaintiff for an EOT to file its Defence, and the defendant took it upon itself to confirm its request (as well as the plaintiff’s consent) in writing. [36] Here, D1D2 made no merits-based requests for an EOT to file their Defence, and—crucially—did not file their Defence. They filed the stay application on the very day their Defence was due. This sequence of events is inconsistent with any inference of submission to the court’s jurisdiction. It is, instead, consistent with a party taking the earliest available opportunity to assert its right to go to arbitration. [37] Fourth, as to the EOT requests to file affidavits in the injunction proceedings: those requests were compelled by court-imposed deadlines in a separate interlocutory application initiated by P, which D1D2 needed to oppose. A party required by the court to respond to interlocutory steps (with prescribed deadlines) cannot be said to have voluntarily submitted to the court's jurisdiction by complying with those requirements at the expense of their right to go for arbitration. To hold otherwise would trap defendants in an impossible position—either ignore court-imposed deadlines and suffer the consequences, or comply and be held to have forfeited their right to arbitrate. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 12 of 28 [38] Fifth, I note P's reliance on Yeo Eng Lam v Infinity Vantage Sdn Bhd [2020] 4 MLJ 835 (CA); [2020] 6 CLJ 616; [2020] AMEJ 0505; [2020] MLRAU 128 (Yeo Eng Lam)—at the Court of Appeal level. I also note that P's solicitors did not draw my attention to the fact that the Federal Court reversed the Court of Appeal in that case, and held that the relevant conduct did not amount to a step in the proceedings. That omission was pointed out to me by counsel for D1D2. [39] In that case, the High Court dismissed the defendant’s stay application. On appeal, the Court of Appeal affirmed the High Court and refused the stay, on grounds that included this ground: the defendant had applied to disqualify the plaintiff’s solicitors from acting, without stating any reservation of their right to refer the dispute to arbitration. But the Federal Court disagreed with the Court of Appeal and permitted the stay. The Federal Court's reversal of the Court of Appeal decision in Yeo Eng Lam (CA) reinforces my finding that D1D2 here took no step in this court proceeding. [40] I find that D1D2 made the stay application before taking any other step in court proceedings. The first pre-condition of subsection 10(1) of the AA 2005 is satisfied. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 13 of 28 Issue 2: Whether a valid and operative arbitration agreement exists [41] D1D2 submit that Clause 8.1 of the EA is a clear, express, and binding arbitration agreement covering "any dispute or difference" between the parties. P signed the EA. P deposited the Escrow Sum pursuant to it. The clause squarely covers the present dispute, which arises directly from the EA. [42] P submits that the EA is a sham, designed to clothe a dubious arrangement in the guise of a legitimate commercial transaction to buy a helicopter. P's narrative—as deposed in P's Affidavit in Reply— is that D2 induced P's director (Gibbrael), who was detained in Indonesia by the Indonesian anti-corruption authority, to deposit USD2.5 million purportedly to resolve the Indonesian detention proceeding. [43] The EA was, P says, merely a front constructed to avoid suspicion of money laundering. P contends that the true contract between the parties was an oral agreement to pay bribes to Indonesian authorities in exchange for Gibbrael's release—and that this oral agreement, rather than the EA, is the real foundation of the claim. Because the EA is a sham and the underlying arrangement is illegal, P argues that it is null and void, and the arbitration clause cannot be enforced. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 14 of 28 [44] I reject P's submission. I do so for five reasons. [45] One—P's pleaded case contradicts its submission. P's Statement of Claim pleads breach of the EA as its cause of action and seeks general damages for that breach. P invokes the EA as the very foundation of its claim for relief. Having done so, P cannot simultaneously disown the EA to defeat D1D2's stay application. [46] The principle is elementary: a party cannot approbate and reprobate. P cannot stand upon the EA to advance its claim and then disown it when the EA's own terms compel a reference to arbitration. [47] Two—the sham argument is unpleaded. P did not plead in its Statement of Claim that the EA is a sham. This argument first surfaces in P's Written Submission. It is deployed just to resist the stay application. It is not appropriate for me to decide on a sham allegation that was never pleaded. [48] Three—even if P's sham argument is taken at its highest, the separability doctrine saves Clause 8.1. The Court of Appeal in Peninsula Education held that an arbitration clause is a separate and autonomous agreement, capable of surviving even where the parent agreement is impugned. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 15 of 28 [49] Impugning the EA, therefore, does not automatically extinguish Clause 8.1. P must independently demonstrate that Clause 8.1 itself— as a free-standing agreement—is null and void, inoperative, or incapable of being performed. P has not attempted to do so. P has adduced no evidence that Clause 8.1 was itself a sham, inserted without genuine intention by either party to be bound by it. [50] Four—on the proper legal test for a sham, the standard is a high one. As Diplock LJ stated in Snook (cited and followed in Huat Hing Rubberwood)—a sham requires a bilateral and shared intention by all parties that the document does not create the legal rights and obligations it purports to create. [51] P has produced no affidavit evidence that D1D2 shared any such intention. On the contrary: D1D2 prepared the EA, had P sign it, received the Escrow Sum pursuant to it, and made payments from the escrow account—conduct which is consistent with a party treating the EA as a genuine, operative agreement. [52] P's own deponent, Gibbrael, deposes in P's Affidavit in Reply that he was told that the EA was necessary to avoid money laundering suspicion. That averment, even if true, does not establish a bilateral sham—it establishes an alleged misrepresentation by D2 to P. A unilateral deception, if proven, may give rise to other remedies, but it does not satisfy the Snook test for a sham. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 16 of 28 [53] Five—P has failed to show that it never relied on the EA, never agreed to Clause 8.1, or never knew of the arbitration clause. These are the three foundational facts on which an argument of non-engagement with the arbitration clause might be built. No such facts are present here. [54] P signed the EA. P deposited USD2.5 million pursuant to it. P later issued letters of instruction directing D1 to make payments from the escrow account. P demanded a refund on the basis of the EA's terms. P then pleaded breach of the EA in its Statement of Claim. That is a continuous course of conduct that discloses that P relied on the EA at every turn. [55] I therefore find that Clause 8.1 of the EA is a valid and binding arbitration agreement between P and D1. It is not null and void, not inoperative, and not incapable of being performed. Issue 3: Whether the true contract is an oral agreement that displaces the EA and its arbitration clause [56] P's further argument is that the real contract between the parties is not the EA but an oral agreement under which D2 promised to secure Gibbrael's release from Indonesian detention, in exchange for the payment of USD2.5 million. P contends that its claim rests on this oral agreement, which contains no arbitration clause, such that the EA and Clause 8.1 are irrelevant to the present dispute. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 17 of 28 [57] This argument is untenable. Three points dispose of it. [58] First—P did not plead the oral agreement in its Statement of Claim. I reiterate that P pleaded breach of the EA—a written contract. P did not plead a collateral agreement, implied terms, or an oral contract that varied or displaced the EA. P's claim, as pleaded, is squarely founded on the EA. [59] Second—even if an oral agreement of the kind alleged were to exist, P has not pleaded that it contains terms incompatible with the EA. It is well-established that a collateral agreement displaces a written contract only if its terms are inconsistent with those of the written contract. No such pleading was advanced. [60] Third, and in any event—the EA itself states on its face—that its purpose is to show "proof of fund in trust". That stated purpose is not inconsistent with an underlying arrangement that required demonstration of available funds for the purchase of a helicopter. Hence, P cannot maintain that the EA's stated purpose is wholly divorced from whatever arrangement the parties may have made. [61] The oral agreement argument is an afterthought, raised to manufacture a basis for resisting the stay application. It does not succeed. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 18 of 28 Issue 4: Whether the dispute falls within the scope of Clause 8.1 [62] D1D2 submit that P's claim arises squarely from, and in connection with, the EA. Clause 8.1 covers "any dispute or difference… touching any matter in any way connected to this agreement." The breadth of that language encompasses P's claim, which concerns the alleged non-return of funds held under the EA. [63] P relies on the High Court case of Delta-Sport Handelkskontor Gmbh & Anor v Tetuan Harjit Sandhu Wan & Associates & Anor [2022] MLJU 875 (HC); [2023] AMEJ 2723 (Delta-Sport), where D1D2 are also defendants. There, D1D2 also filed a subsection 10(1) AA 2005 stay application to refer that dispute to arbitration. [64] The judgment from the case was cited and produced by P’s solicitor in an Additional Affidavit affirmed by the solicitor. The solicitor averred that the High Court dismissed D1D2’s stay application in that case. They appealed to the Court of Appeal. The Court of Appeal dismissed their appeal. They applied for leave to appeal to the Federal Court. The Federal Court refused them leave. [65] Relying on that High Court judgment, P argues that D1D2's partial return of USD500K, and D2's WhatsApp confirmation that he would proceed with the refund, constitute admissions of liability that take the dispute outside the scope of the arbitration clause. P argues that the Delta-Sport case involved the same D1D2 operating the S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 19 of 28 same kind of escrow arrangement, and hence the same result must follow here. [66] But, I find that P's claim falls within the scope of Clause 8.1. My reasons are as follows. [67] First—the words of Clause 8.1 give it a wide compass. It covers any dispute in any way connected to the EA. P's claim—for the return of funds deposited under the EA and for breach of the EA's terms—is not merely connected to the EA; it is founded upon it. [68] Second—the Delta-Sport case does not compel the same outcome on the facts of our case. I find that the critical factual basis on which the High Court in the Delta-Sport case declined to stay the court proceedings was the defendants' (D1D2’s) express and unequivocal admission there, in written correspondence, that they were liable to refund the stakeholder sums and were "initiating the refund". These admissions effectively resolved the substantive dispute, leaving nothing left to arbitrate. [69] But on the facts before me, D1D2 have made no such unequivocal admission. D2's WhatsApp message on 22.12.2023 and the partial return of USD500K are equivocal. D1D2 have consistently maintained, in their affidavits, that there is a live and refuted factual dispute about the circumstances in which the Escrow Sum was paid S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 20 of 28 out. That is precisely the kind of dispute Clause 8.1 was designed to capture. [70] Third—the Delta-Sport case judgment is a High Court judgment, which does not bind me. I am not inclined to follow it because the factual matrix is materially different. [71] Fourth—I am mindful that courts should lean towards, rather than against, granting a stay where there is any doubt about whether the subject matter of the claim falls within the arbitration clause. This approach was articulated by the Federal Court in Press Metal Sarawak, at paragraph [88], and reflects the pro-arbitration policy of the AA 2005. [72] I find that the dispute falls within the scope of Clause 8.1 of the EA. Issue 5: P's attempt to argue the substantive merits and the Court's proper role in a stay application [73] Throughout this proceeding, P has persistently introduced merits-laden arguments: allegations of fraud, fabrication of documents, the absence of any genuine helicopter transaction, and similar-fact evidence drawn from the Delta-Sport case. All of this has been framed as an exercise to establish that the arbitration S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 21 of 28 agreement is inoperative or incapable of being performed. I analyse P’s approach. [74] The Federal Court in Press Metal Sarawak was unequivocal— once the existence of a valid arbitration agreement is established and none of the statutory exceptions applies—the court is "not required to delve into the details of the dispute or difference", and is not entitled to do so. Those matters fall within the jurisdiction of the arbitral tribunal. [75] The Court of Appeal in Setia Awan, at paragraphs [50], [58], [105], [106], reinforced this principle with particular clarity, emphasising that: courts must adopt a non-interventionist posture; parties are to be held to the mode of dispute resolution they freely chose; and issues of validity, scope, and merits all fall within the province of the arbitral tribunal. [76] P's conduct—repeatedly filing further affidavits and making merits-driven submissions, introducing fraud allegations, and advancing arguments about the non-existence of the helicopter transaction—is an illustration of P’s drive for a premature determination of the merits of the dispute. It is an attempt to pre-empt the arbitral process by inducing this court, at the interlocutory stage, to conduct a full adjudication on the merits under the cover of challenging the arbitration clause. Our courts deprecate exactly this course of conduct in Press Metal Sarawak and Setia Awan. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 22 of 28 [77] This position is fortified by Sunway Damansara—a party that has agreed to arbitrate cannot use its own subsequent conduct— including the filing of affidavits on the merits and the invoking of tactical procedural steps—as grounds to escape that agreement. P chose to execute Clause 8.1. P is bound by the choice it made. [78] I note, finally, that arbitrating this dispute does not prejudice P. The SIAC tribunal has full jurisdiction and power to grant P all the reliefs and remedies it seeks if it succeeds in arbitration—including the return of the outstanding escrow sum and general damages for breach. Arbitration is not a lesser forum; it is the forum P agreed to. Issue 6: The Court's Jurisdiction to Examine the Arbitration Clause and the Macsteel Argument [79] P submits, relying on Macsteel International Far East Ltd v Lysaght Corrugated Pipe Sdn Bhd and other appeals [2023] 4 MLJ 551 (CA); [2023] AMEJ 1097; [2023] CLJU 1078 (Macsteel)—that this court has the jurisdiction to scrutinise the arbitration clause and determine whether it falls within the statutory exceptions. P submits that this court should conduct a detailed examination of the EA's validity. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 23 of 28 [80] D1D2 submit that the court's inquiry under subsection 10(1) is narrowly confined, and that Macsteel is concerned with an entirely different circumstance—one where the very existence and authenticity of the contract is in dispute. [81] I accept, as a matter of law, that this court has jurisdiction under subsection 10(1) to determine whether the statutory exceptions apply. That is what the provision expressly says. But jurisdiction to examine the exceptions does not translate into a requirement to conduct an inquiry into the merits at this stay application stage. The court examines the exceptions; it should not try the case. [82] It is my view that Macsteel is distinguishable. That case involved allegations that the contracts in question were forged and fraudulently created—a case where the very authenticity of the agreement was at issue, such that there was a serious question whether any agreement existed at all. [83] The facts here are different. P does not deny signing the EA. P does not deny depositing USD2.5 million pursuant to it. P issued letters of instruction to D1 under it. P terminated it on 24.1.2024 by formal communication. P then pleaded breach of it. The existence and authenticity of the EA are not in dispute; what is disputed is the performance of its terms. That is precisely what the arbitral tribunal is equipped (and agreed by the parties) to determine. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 24 of 28 [84] I am satisfied that none of the three statutory exceptions—null and void, inoperative, incapable of being performed—applies to Clause 8.1 of the EA. The court's role under subsection 10(1) is therefore exhausted. The mandatory stay must follow. CONCLUSION AND ORDER [85] I find, for the reasons stated above, that all the requirements of subsection 10(1) of the AA 2005 are satisfied:

(1) D1D2 filed the stay application before taking any other step in the proceedings;

(2) Clause 8.1 of the EA is a valid, binding, and operative arbitration agreement between P and D1;

(3) Clause 8.1 is neither null and void, nor inoperative, nor incapable of being performed; and

(4) P's claim falls within the scope of Clause 8.1. [86] The stay is mandatory. I invoke the statutory provision of subsection 10(1) of the AA 2005 and honour the agreement the parties made to refer any dispute between them to arbitration, following the principles propounded by the Federal Court in Tindak Murni. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 25 of 28 [87] To permit P to bypass an arbitration agreement that it freely signed—at a time when D1D2 have done nothing to abandon their right to arbitrate and have moved promptly for a stay—would be to condone a breach of the parties' bargain and to undermine the pro-arbitration policy of the AA 2005. [88] I allow D1D2’s stay application. I order all further proceedings in this action to be stayed pursuant to subsection 10(1) of the AA 2005, and refer this dispute to the SIAC under Clause 8.1 of the EA for arbitration, with costs of RM7K to be paid by P to D1D2 by 6.4.2026. Costs are subject to the allocatur. Dated: 26 May 2026 KENNETH ST JAMES HAKIM MAHKAMAH TINGGI MALAYA KUALA LUMPUR S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 26 of 28 Solicitors for the Plaintiff : Abu Daud Abdul Rahim, Muhamad Zuraidi Zulkifli, Nik Amalia Suraya Nik Muhammad Saifuddin Messrs. Azmi & Associates Solicitors for the Defendants : Rishwant Singh, Defendant 1 and Defendant 2 Dev Chai Ming Shun, Satvinder Kaur a/p Harminder Singh Messrs. Harjit Sandhu, Wan & Associates Legislations:

1. Section 10 (1) of the Arbitration Act 2005.

2. Section 8 of the Arbitration Act 2005.

3. Section 9 of the Arbitration Act 2005. Cases:

1. Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 (FC); [2016] 5 AMR 635; [2016] 9 CLJ 1; [2016] 5 MLRA 529.

2. Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd & Another Appeal [2020] 3 MLJ 345 (FC); [2020] 2 AMR 387; [2020] 4 CLJ 301; [2020] 2 MLRA 264.

3. Setia Awan Management Sdn Bhd v SPNB Aspirasi Sdn Bhd [2025] 4 MLJ 181 (CA); [2025] 5 AMR 225; [2025] 7 CLJ 578; [2025] 4 MLRA 619. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 27 of 28

4. Airbus Helicopters Malaysia Sdn Bhd v Aerial Power Lines Sdn Bhd [2024] 2 MLJ 471 (CA); [2024] 3 AMR 125; [2024] 4 CLJ 243; [2024] 3 MLRA 152.

5. Apex Communications Sdn Bhd v Sumber Khazanah Sdn Bhd (dalam likuidasi) and another appeal [2026] 3 MLJ 152 (CA); [2026] 2 CLJ 477; [2025] AMEJ 3039; [2025] MLRAU 373.

6. Peninsula Education (Setai Alam) Sdn Bhd (previously known as Segi International Learning Alliance Sdn Bhd v Biaxis (M) Sdn Bhd (in liquidation) [2024] 5 MLJ 388 (CA); [2024] 10 CLJ 216; [2024] 6 MLRA 160; [2024] AMEJ 1754.

7. Snook v London and West Riding Investments Ltd [1967] 2 QB 786.

8. Huat Hing Rubberwood Sdn Bhd v Goodnite Sdn Bhd & Ors [2018] MLJU 1650 (HC); [2018] AMEJ 1415; [2018] CLJU 1770; [2018] MLRHU 1423.

9. Sunway Damansara Sdn Bhd v Malaysia National Insurance Bhd & Anor [2008] 3 MLJ 872 (HC); [2008] 2 AMR 467; [2007] 6 MLRH 764.

10. Mun Seng Fook v AIG Malaysia Insurance Bhd (formerly known as Chartis Malaysia) [2019] 7 MLJ 59 (HC); [2018] 3 AMR 400; [2018] 8 CLJ 394; [2018] 3 MLRH 203.

11. MISC Berhad v Cockett Marine Oil (Asia) Pte Ltd [2022] 8 MLJ 786 (HC); [2021] AMEJ 0444; [2021] 1 LNS 645; [2021] MLRHU 364.

12. Winsin Enterprise Sdn Bhd v Oxford Talent (M) Sdn Bhd [2009] 4 AMR 562; [2010] 3 CLJ 634 (HC); [2009] 3 MLRH 699; [2009] MLJU 286. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 28 of 28

13. Yeo Eng Lam v Infinity Vantage Sdn Bhd [2020] 4 MLJ 835 (CA); [2020] 6 CLJ 616; [2020] AMEJ 0505; [2020] MLRAU

128.

14. Delta-Sport Handelkskontor Gmbh & Anor v Tetuan Harjit Sandhu Wan & Associates & Anor [2022] MLJU 875 (HC); [2023] AMEJ 2723.

15. Macsteel International Far East Ltd v Lysaght Corrugated Pipe Sdn Bhd and other appeals [2023] 4 MLJ 551 (CA); [2023] AMEJ 1097; [2023] CLJU 1078. S/N 54ad66KUe0q3Z74nuxsbgw **Note : Serial number will be used to verify the originality of this document via eFILING portal